Judges Lagoa & Luck to be confirmed next week

Sen. McConnell has filed cloture, which means that they should receive the final confirmation vote next week.  According to those in the know, that should be Tuesday or Wednesday.  Congrats to both of them, really good people. 

District Judge rules border search of cell phone must be based on reasonable suspicion

Unfortunately this major decision isn't from our District. It's from the District of Massachusetts. Here's the ruling.

From Forbes:

A Boston federal court ruled Tuesday that U.S. federal agents can’t conduct “suspicionless” searches of international travelers’ smartphones and laptops at the border and other ports of entry, a decision hailed by the American Civil Liberties Union (ACLU) as a “major victory for privacy rights.”

• In a 48-page decision, U.S. district judge Denise Casper ruled that border officials need justifiable reasons to search a person’s electronic devices, which should be balanced against the privacy interests of travelers.
• According to Reuters, Casper’s ruling is a higher standard than current U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) policies.
• Casper also ruled that the CBP and ICE policies violate the Fourth Amendment, which provides people protection from unreasonable searches and seizures.
• Agents, however, are still not required to obtain search warrants to examine phones and laptops with reasonable suspicion. 
• The ACLU was representing the case’s 11 plaintiffs; lawyer Esha Bhandari said the decision “significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year.”

“Judge, may I address the court. We’re ready to go.”

That was U.S. Attorney Ariana Fajardo Orshan appearing in state county court. From the Miami Herald:

U.S. Attorney Ariana Fajardo Orshan, a former Miami-Dade judge, made a recent return to the state courthouse to watch a trial — involving a minor car crash.

Fajado appeared recently in support of her niece, who was the victim in a fender-bender accident in West Miami-Dade. Fajardo never identified herself on the record nor said she was the top federal prosecutor in South Florida.

But when the judge called the case, Fajardo did speak up, schooling the courtroom’s young prosecutors who appeared to be waffling on whether to proceed to trial against the woman who hit her niece’s car.

“Judge, may I address the court. We’re ready to go,” Fajardo said, according to the audio of the Oct. 22 hearing. “The issue is restitution. I told them you can reserve restitution, per statute, for 60 days to produce the deductible. They seem to think they can’t proceed forward. So I’m here on behalf of my niece, who has now missed school all day. I’m not understanding why we can’t go forward without restitution.”

Prosecutors fighting against First Step Act

That’s according to the Washington Post in this article:

The five former inmates assembled on the White House stage weren’t scheduled to speak, but President Trump couldn’t help himself. “Where’s Gregory? Greg?” he said. “Come on, get up here!”
From behind the president, Gregory Allen saluted and then made his way to the microphone. “Two months ago, I was in a prison cell, and I’m in the White House,” declared Allen, a Florida resident who had been freed under Trump’s signature criminal justice legislation. “That’s continuing to make America great again!”
The gathering in April was a triumphant celebration of the First Step Act, the most sweeping overhaul of the federal criminal justice system in a generation. Since its passage nearly a year ago, the law has led to the release of more than 3,000 inmates — including Allen, who was convicted of cocaine trafficking in 2001.
The Justice Department, though, had never wanted to let Allen out of prison. In fact, even as he and Trump shared a joyous embrace on television, federal prosecutors were trying to persuade a judge to put Allen back behind bars.
***
“DOJ is pushing against the will of the people, the will of Congress, the will of the president,” said Holly Harris, a conservative activist and leader of the Justice Action Network who worked with Congress and the White House to pass the law.
***
The First Step Act aims to lessen long-standing disparities in punishment for nonviolent drug offenses involving crack cocaine. Having five grams of crack, a form of cocaine that is more common among black drug users, used to carry the same mandatory minimum sentence as having 500 grams of powder cocaine, which is more common among white drug users.
But federal prosecutors are arguing in hundreds of cases that inmates who have applied for this type of relief are ineligible, according to a review of court records and interviews with defense attorneys. In at least half a dozen cases, prosecutors are seeking to reincarcerate offenders who have been released under the First Step Act.

This isn’t just happening in First Step cases. It’s happening across the board at sentencing. Lately, prosecutors have taken a new strategic tact — ask for middle or top of the guidelines in an effort dissuade judges from giving variances. Prosecutors are even doing this — not only opposing variances, but opposing low end sentences — in plea cases. This is done so that judges feel like they are doing the defendant some sort of favor by giving an oppressive low-end guideline sentence. Prosecutors are also asking probation to come back much higher than plea agreements state in an effort to have judges believe that a regular old guideline sentence in the plea agreement is a huge benefit to the defendant. Most judges are rejecting these outrageous tactics. But there are a few judges out there that seem to be moved by these new tactics, refusing to give any variance even for first time, non-violent offenders... which is just horrible.

Happier topics

Let's move on to nicer subjects after the last post, shall we?

It looks like the old Dyer building is on the way to a recovery, courtesy of Miami-Dade College.  From the Miami Herald:

Three years after taking possession of Miami’s grandly historic but long vacant federal building, Miami Dade College is nearing completion on the initial phase of a massive $60 million renovation that will return the 1933 Neoclassical masterpiece to public use.

The public college has wrapped up cleanup work to remove asbestos and mold from the vast former courthouse and post office, which has been shuttered since 2008. Next comes remodeling and restoration, a job expected to take two years, said Miami Dade’s interim president, Rolando Montoya, in an interview.

Once that’s done, the monumental building will house the college’s architecture, interior design and fashion design programs in appropriately splendid surroundings. The college also plans to install flexible-use classrooms, robotics and computer labs, faculty and administrative offices, and a conference center with capacity for 400 people.

“I think this is going to be beautiful,” Montoya said: “The building will be an interesting combination of several historical facilities with some high-tech, very modern facilities. It’s very nice architecturally, this combination.”

But, he added: “It’s a lot that has to be done. The building was in very bad shape.”

The limestone-clad federal building, widely regarded as one of the finest works of architecture in Miami, occupies most of a city block at Northeast First Avenue and Third Street across the street from the college’s Wolfson Campus in downtown Miami. Known in latter years as the David W. Dyer building after a prominent judge, the building is on the National Register of Historic places and is also a city of Miami designated historic landmark.

As part of the renovation, the college will restore the Dyer building’s pièce de résistance, an ornate central courtroom adorned by a mural depicting the role of justice in Florida’s development. The federal General Services Administration meanwhile will do its best to restore the badly deteriorated contemporary abstract frescoes by artist David Novros that grace the building’s interior courtyard, Montoya said.

Judge Moore is really serious about the Bluebook (updated)

Footnote 2:

The Court adopts in part Magistrate Judge Reid’s R&R with the following alterations: the pin cite in the citation on page six, line seven should be “1279” and omit citation to “n.2”; the pin cite in the citation on page seven, line seven should be “1223, n.2”; the case name on page seven, line nine should read: “Goebert v. Lee Cty.”; the quotation on page nine, line six should read: “[The] right must be . . .”; the pin cite in the citation on page nine, line thirteen should be “1121”; the quotation on page thirteen, line eleven should read: “We do not require a case directly on point, but existing precedent . . .”; the pin cite in the citations on page fourteen, lines one and six should be “589–90”; the quotation on page seventeen, line five should read: “Miami-Dade County and/or Public Health Trust”; the quotation on page eighteen, line nineteen should read: “[it] can rise to the level . . .”; the pin cite in the citation on page twenty, line seventeen should be “589–90”; the parenthetical on page twenty-one, line nine should read: “offering extraction over a root canal is not a constitutional violation if an extraction is medically appropriate to remove tooth decay”; the citation on page twenty-seven, lines five to six should read: “219 F.3d 132, 137 (2d Cir. 2000)”; and the citation on page twenty-seven, line nine should read “219 F.3d at 132.” Finally, the Court notes that it does not adopt citations in the R&R that do not conform to The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 20th ed. 2015).

Yikes.

Here’s the R&R and the District Order.

Update— both in the comments and in emails/texts, people are criticizing me for posting this public order. I didn’t write the order, of course. This blog is meant to publish news about the District. Lawyers and judges around town are talking about the order. Numerous folks sent it to me. It certainly seems newsworthy. I have personal feelings about the order and who it makes look bad, but I’m not putting those out there. I’ll let you comment on that issue. I just put it out there because it happened.

Breaking Andrew Brasher nominated to the 11th Circuit

As predicted on this blog, President has nominated Andrew Brasher to fill Chief Judge Carnes’ seat.

From the White House release:

The White House
Office of the Press Secretary
FOR IMMEDIATE RELEASE
November 6, 2019

President Donald J. Trump Announces Judicial Nominees

Today, President Donald J. Trump announced his intent to nominate:

Andrew L. Brasher of Alabama, to serve as Circuit Judge on the United States Court of Appeals for the Eleventh Circuit.

Andrew Brasher currently serves as a United States District Judge for the Middle District of Alabama. Before taking the bench in May 2019, Judge Brasher was the Solicitor General of the State of Alabama, where he argued cases before the United States Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the Alabama Supreme Court. He previously served for several years as the Deputy Solicitor General and practiced in the litigation and white-collar criminal defense practice groups in the Birmingham, Alabama office of Bradley Arant Boult Cummings LLP. Upon graduation from law school, Judge Brasher served as a law clerk to Judge William H. Pryor Jr. of the United States Court of Appeals for the Eleventh Circuit. Judge Brasher earned his B.A., summa cum laude, from Samford University and his J.D., cum laude, from Harvard Law School, where he was a member of the Harvard Law Review.

News & Notes

1. Lots and lots of DUI convictions have been exposed as faulty under this NY Times report regarding the inaccurate breathalyzer tests.

2. Transitions is having its Fall Festival this Thursday, Nov. 7 at 6pm at the Historic Lyric Theatre, 819 NW 2nd Avenue.

3. Are Trump's tax returns headed to the Supreme Court? From Lyle Denniston:

President Donald Trump’s lawyers plan, within the next 10 days, to go to the Supreme Court with a plea to rule – before the Justices’ current term ends this summer – that no court has power to order that his personal and business tax returns be handed over to a state criminal investigation. That appeal follows a unanimous ruling Monday by a federal appeals court in New York City, rejecting the President’s sweeping claim of total immunity to any state probe of his financial affairs.

In its 34-page decision, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the accounting firm that has the Trump personal and business tax records must obey a New York state grand jury subpoena demanding the turnover of eight years of that data, going back to January 2011. The panel stressed that its ruling was narrow and did not settle wide-ranging questions on what kind of legal immunity Trump might have, if the subpoena were aimed at him directly rather than at his accounting firm. (The firm is Mazars USA; it takes no position in the legal fight over Trump’s records.)

Under an agreement reached last month, between the state prosecutor and Trump’s attorneys, a defeat for the President in the appeals court would start the running of a 10-day period for an appeal to the Supreme Court.

Vowing to pursue that appeal, one member of the Trump legal team, Washington, D.C., attorney Jay Sekulow, said in a statement that “the issue raised in this case goes to the heart of our Republic. The constitutional issues are significant.”

Under the terms of the two sides’ agreement, the state prosecutor will make no attempt to enforce the disclosure of the tax records during the ten days that an appeal is being prepared – that is, apparently, by November 14 – and for another 10 days after that while legal papers are being submitted to the Justices by both sides. Trump’s team is also required to ask the Justices to grant review, hear and reach a final decision during the Court’s current term, which is expected to run until late June. If the Justices do grant review, the subpoena will not be enforced while the Justices work on a decision.

The Justices have complete discretion to grant or deny review; Trump has no guarantee of review. The Justices also have no duty to proceed on the schedule Trump’s team will be suggesting. However, because of the importance of the constitutional dispute, review and a speedy process very likely will be allowed.

The main constitutional question the appeal is expected to raise is this: Does the President, while serving in office, have complete immunity to any investigation by a state or local government prosecutor, even if the probe seeks information of a personal or private nature and does not demand access to any documents or data directly involving the performance of official duties?

4. Speaking of the Supreme Court, there was an interesting case there today on the 4th Amendment. From Orin Kerr:

[T]he Supreme Court will hold argument in an interesting Fourth Amendment case, Kansas v. Glover.  Glover raises a simple question: When an officer spots a car driving on a public road, and a license check reveals that the registered owner of the car has a suspended license, does the fact that the registered owner of the car has a suspended license create reasonable suspicion that the driver of the car has a suspended license that then justifies a Terry stop of the car?   Put another way, for Fourth Amendment purposes, can the police presume that the registered owner of a car is driving it?