Your next magistrate judge will be...

...one of these 5:

AFPD Sowmya Bharathi
Barbara Junge

Meredith Schultz 

AUSA Steve Petri

AUSA Jared Strauss 

The district judges will interview these candidates and make a decision at their next judges' meeting in October.  Congratulations!

Greatest opening ever?

“Good afternoon, grand jury. What I want to say ... I don’t believe I did anything wrong. And thank you, USA.”

That was Yujing Zhang's entire opening statement this morning before Judge Altman. The post below covers the craziness that happened with her clothing before trial started.

Michael Sherwin, a good guy and smart prosecutor, has the unenviable task of trying a case against a pro se defendant. The Herald covered his opening:

Assistant U.S. Attorney Michael Sherwin, one of two prosecutors, told the jury that Zhang had lied multiple times to Secret Service agents and Mar-a-Lago staff in order to gain entry for a charity event, even though she learned the gala had been canceled days earlier.

The prosecutor told the 12-person jury that Zhang gave a variety of misleading explanations to agents and staff before her arrest. Among them: that she had come to the president’s Palm Beach club to use the pool, that she had been invited to a United Nations Chinese-American Association event, and finally that she wished to engage in trade and economic negotiations with Trump and his daughter, Ivanka.

“In no way was this defendant authorized to be there,” Sherwin said. “She lied multiple times.”

The prosecutor said that after Zhang’s arrest. federal agents discovered evidence on her iPhone 7 showing she had received text messages while she was still in China saying the Mar-a-Lago event on March 30 was canceled.

Zhang received the bad news in two “We Chat” messages on March 18 and March 26 from a person she had paid to make the arrangements for her, Sherwin said. Zhang was upset and texted back: “I want a refund.” Despite the cancellation, Zhang left for the United States two days later on March 28.

Even the first witness had a memorable moment:

Prosecutors presented their case chronologically, including testimony by a cab driver who said he took a woman who looked like Zhang to the area around Mar-a-Lago on March 29, the day before her arrest.

Willy Isidore said he picked up the woman at the Colony Hotel in Palm Beach and she asked him to give her a ride to Mar-a-Lago.

“She said she didn’t have an invitation,” Isidore testified. “I told her, ‘If you don’t have an invitation, you can’t get in.’ ”

Instead, he drove her to the neighborhood around Trump’s private club. He said the woman was talking on her cell phone and taking pictures the whole time.

When he brought her back to the Colony Hotel, Isidore said the woman asked for a receipt and he gave her his business card.

“She told me her name was Veronica,” Isidore testified.

But when asked if he could recognize the woman by Assistant U.S. Attorney Rolando Garcia, Isidore flubbed the question.

“Maybe,” he said, sitting less than 10 feet away from Zhang in the courtroom. “I’m not sure.”

Zhang did not cross-examine Isidore, missing an opportunity to challenge his credibility.

The Herald says that she missed the opportunity to challenge his credibility, but she actually did the right thing here. If she gets up and crosses the guy, he might then recognize her. Sometimes "no questions" is the right move.

Roy Altman to start trial this morning in the pro se Chinese trespasser case (UPDATED)

The pro se Chinese national charged in federal court with trespassing at Mar-a-Lago starts trial this morning.  The Miami Herald has this profile on Yujing Zhang in advance of the trial.  The Federal Public Defender's Office will be standby counsel. 

Judges and prosecutors hate pro se defendants.  It's a tough tight rope of giving them the benefit of the doubt and not letting them take advantage.

From the Herald:

Zhang, who has spent the past five months in pretrial detention, has been charged by indictment with two federal crimes: trespassing on restricted property and lying to a federal agent. Next week, a jury will determine how at least that part of her story ends during a trial that begins Sept. 9.

Though she has not been charged under the Espionage Act, prosecutors have filed classified evidence in Zhang’s case, indicating the existence of an ongoing, parallel investigation into matters regarding national security that potentially involve her and others. The FBI’s counterintelligence squad is investigating whether the Chinese national was working as an agent of the Chinese government or had been in contact with officials in Beijing before her trip to Mar-a-Lago, according to sources familiar with the probe.

Prosecutors have suggested they could bring more charges against Zhang in the future.

Currently facing a maximum of six years in federal prison, Zhang’s best possible defense seems premised on presenting herself as a bumbling foreign tourist lost in an unfamiliar world. Experts on Chinese espionage say it’s an act they’ve seen before — and that playing the role of a misguided, Trump-obsessed businesswoman could be the perfect cover for a spy. Mar-a-Lago and other Trump properties — where the president is known to loosely discuss national-security affairs — present perfect targets for foreign infiltration.

UPDATE -- jury selection appears to have been ... interesting (via the Miami Herald):

On Monday morning, Zhang appeared in a courtroom at the Fort Lauderdale federal court house in a brown inmate uniform. She is representing herself despite a judge’s plea that she accept attorneys from the Federal Public Defender’s Office, and is facing a maximum of six years in prison on charges of entering restricted property and lying to a federal agent.

Seeing the under-dressed defendant in court, U.S. District Judge Roy Altman asked Zhang why she wasn’t wearing her civilian clothes.

Zhang, speaking in Mandarin, told Altman that she didn’t have any “undergarments,” or underwear, such as a bra and panties, although in fact she had been provided with clothes she brought with her from China before her arrest.

The judge quickly dressed her down.

“You have no undergarments in your cell?” he asked.

“No,” said Zhang, who is being held in a Broward County jail facility while in federal custody.

“You should wear your civilian clothes so the jurors don’t see you in your prison garb,” Altman explained.

Zhang said she didn’t understand the judge’s English, and Altman told her to listen to her Mandarin interpreter or “we could be here for a year.”

Finally, Assistant Federal Public Defender Kristy Militello, who is still advising Zhang though her client fired her before trial, intervened. Militello told the judge that Zhang had the appropriate undergarments along with a silk blouse and skirt and could change into them.

In that case, the judge said, Zhang should change out of her prison garb.

About 15 minutes later, Zhang returned in a blouse, peach-colored jacket and khaki slacks.

The judge told her that he was going to introduce her to prospective jurors. She said she didn’t want to be introduced because she thought the trial was canceled.

“You are obviously unprepared to proceed,” Altman said, then “strongly recommended” that Zhang go to trial with the public defender by her side.

Altman asked her one last time if she wanted Militello to represent her.

“I don’t think so,” she told Altman.

And with that, the jury candidates were brought into the courtroom. The two sides must pick 12 of them plus a few alternates for trial.

Stanley Marcus to take senior status

Big news out of the 11th Circuit today.  Judge Stanley Marcus announced that he will be taking senior status meaning that Donald Trump will get to appoint another judge to that court.  Although Marcus was appointed by President Clinton, he is known for siding with the conservative wing of the court, especially on criminal justice issues so it’s not altogether clear that a Trump appointee will move the already very conservative court more to the right.  With Marcus’ announcement, that means that Trump has two seats to fill on the 11th (Tjoflat also recently announced his retirement).  Both seats will be filled from Florida.

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.