News & Notes (UPDATED)

UPDATED -- the 11th Circuit has canceled its judicial conference.  From Ed Carnes:

Because of the evolving threat represented by the outbreak and spread of the
Coronavirus (COVID-19) in the United States and in the State of Georgia, and in
view of the warnings issued by the Center for Disease Control, as well as by
Governor Kemp, I have decided to cancel the Eleventh Circuit Judicial
Conference, which had been scheduled to be held May 6 through May 9, 2020 in
Atlanta. Although circuit judicial conferences provide a good opportunity for
judges and lawyers to learn from each other and from speakers, I concluded that
the cancellation was necessary and prudent in the interest of the health of all of
those who would have attended the conference.
Given the importance of these conferences to the bench and Bar, we hope to
be able to reschedule this conference for 2021 if circumstances permit.

1. Harvey Weinstein sentenced to 23 years. From the NY Times:

Two of Mr. Weinstein’s victims gave emotional statements about the damage he had done to them. Miriam Haley, who testified Mr. Weinstein forced oral sex on her in 2006, said he had forever altered her life, crushing her spirit.

“He violated my trust and my body and my personal right to deny sexual advances,” she said.

Given a chance to speak, Mr. Weinstein suggested in a rambling speech to the court that he thought his relationships with his victims were consensual.

“We may have different truths, but I have remorse for all of you and for all the men going through this crisis,” he said, addressing his accusers.

He added: “I really feel remorse for this situation. I feel it deeply in my heart. I’m really trying, I’m really trying to be a better person.”

2. The Herald is covering the cert petition Miladis Salgado, which the blog posted about here back in January. From the Herald:

Now, Salgado is asking the U.S. Supreme Court to make her whole for the misguided May 11, 2015, raid on her home, arguing that a forfeiture law allows victims of wrongful money seizures to recover attorney’s fees in addition to their actual losses from the government. The outcome of a petition brought by the 57-year-old naturalized U.S. citizen from Colombia could affect thousands of people nationwide whose money is seized by federal agencies without criminal charges ever being filed against them.

“This is a game that the Justice Department plays — it’s a war of attrition,” said lawyer Justin Pearson with the Arlington, Va.-based Institute for Justice, which is representing Salgado free of charge. “This is a cash grab by the government to take money away from people who don’t have the ability to fight back.”

The U.S. Supreme Court is expected to decide in April whether to hear Salgado’s petition. After the solicitor general for the Trump administration signaled that he was not going to respond to her claim, the high court ordered his office to do so. In a recent filing, Solicitor General Noel Francisco asserts that Salgado had not “substantially prevailed” against the government, reasoning that when the feds returned her money, they did not lose the right to refile their civil forfeiture case and therefore did not owe her attorney’s fees.

3. The 11th Circuit in a 2-1 decision today said that the state prison system did not violate the rights of a transgender inmate by not treating her appropriately. This decision reversed a lengthy opinion by the district court. Newsom wrote the majority, which was joined by a visiting Alabama district judge. Judge Wilson wrote the dissent. I will summarize the opinion shortly, but it's definitely worth a read. Here's a Herald article discussing the issue of transgender inmates, including Reiyn Keohane (the inmate as issue in this case) back from December.

SDFLA notice regarding Covid19

This notice went out from the clerk’s office yesterday:

U.S. District Court for the Southern District of Florida
If you have traveled to any of the following countries within the last 14 days:
ITALY
IRAN
SOUTH KOREA
CHINA
Or if you reside with or have had close contact with someone who has
traveled to one of the above areas within the last 14 days
Or if you have been asked to self-quarantine by any hospital or health agency
Or if you have been diagnosed with, or have had contact with, anyone who has been diagnosed with COVID-19
Please advise the Court Security Officer prior to entering the Screening Area.
If a person answers yes to any of the above questions, they shall be denied entrance to the courthouse and be given the attached sheet of paper directing them to whom they should speak.
If you have any questions or concerns, you should contact Angela E. Noble, Kevin Kappes or Brandy Lonchena at 305-523-5001.
Thank you for your immediate attention to this matter.

If you have been denied entrance to the courthouse: If you are represented by an attorney, please contact your attorney.
If you are a juror, please contact the
Jury Department
(305) 523-5190
For District Court matters, please contact Angela Noble, Clerk of Court
(305) 523-5001
For Bankruptcy Court matters, please contact Joe Falzone, Clerk of Court
(305) 714-1800
For Probation matters, please contact Probation
(305) 523-5331
For all other matters please contact
Angela Noble, Clerk of Court
(305) 523-5001

You be the judge: What is an appropriate sentence for Harvey Weinstein?

The prosecutors are asking for the Court to consider 11 single-spaced pages of uncharged and unproven conduct.

The defense will be filing its memo shortly.

USA Today has this summary:

Harvey Weinstein's sentence for his conviction on two sex crimes should reflect his "lifetime of abuse" as shown at his trial and in 36 other cases of sexual harassment and assault, workplace abuse and even physically assaulting a reporter, Manhattan prosecutors said in a letter to the trial judge released Friday.

The 11-page letter from Assistant District Attorney Joan Illuzzi was sent to Judge James Burke in advance of Weinstein's sentencing on March 11, when prosecutors are expected to make an oral statement in court about the sentence.

The trial evidence, the testimony of the six accusers who took the stand, and additional allegations outlined in the letter, Illuzzi said, "show a lifetime of abuse towards others, sexual and otherwise."

She asked the judge to "impose a sentence that reflects the seriousness of defendant's offenses, his total lack of remorse for the harm he has caused, and the need to deter him and others from engaging in further criminal conduct."

Weinstein was convicted Feb. 24 of third-degree rape and first-degree sexual assault involving two women, and was acquitted of three more serious charges. He could be sentenced to prison for a term ranging from five years to 25 years.
***

"As this court is well aware, in imposing what it deems to be a fair and just punishment, a sentencing court is not limited to the evidence at trial," Illuzzi wrote, citing precedent to argue that the judge has "wide discretion to consider all circumstances that shed light on a convicted person's background, history and behavior" in considering a sentence.

"Chief among the information considered at sentencing is the defendant's history of 'misconduct, whether or not it resulted in convictions,' " Illuzzi said, citing precedents in several federal cases.

Justice Roberts is fired up...

...at Sen. Schumer for his comments that Justices Gorsuch and Kavanaugh "have released the whirlwind and ... will pay the price." Roberts responded: "Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter."

I wonder where all of that whirlwind talk got started.  Here's Kavanaugh to the Dems during this confirmation hearing: "Since my nomination in July, there’s been a frenzy on the left to come up with something, anything, to block my confirmation. You sowed the wind and the country will reap the whirlwind."

Of course, Trump makes it a daily occurrence to criticize judges across the country. Trump has led the charge with attacks against the judiciary, so it's unfortunate for the Democrats that Schumer went there.  And it's too bad that the Chief decided to single out and decry this (wrong and awful) attack instead of the daily right wing attacks.  They are all wrong and need to stop.

What's the appropriate sentence for a 22-year old austic man who stalked and taunted the families of the Parkland victims?

This is a tough one.

The sentencing guidelines were 57-71 months.  The statutory maximum for each of the 4 counts of conviction was 5 years (60 months).  The defense asked for a downward variance and a residential program to address his mental issues.  The prosecutor asked for an upward variance to 20 years! (The stat max for each count stacked on top of each other). Of course we all feel for the victims, but 20 years is more than many rapists, murderers, and terrorists get.

After a lengthy sentencing, Judge Ruiz issued a guideline sentence of 66 months.

A summary from the New York Times:

A 22-year-old California man was sentenced to 66 months in federal prison on Monday after cyberstalking and threatening to kidnap relatives of those killed in the 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla., federal prosecutors said.

The man, Brandon Michael Fleury, impersonated the confessed gunman on social media for three weeks to threaten and taunt survivors of the shooting and victims’ loved ones. He was found guilty in October of three counts of cyberstalking and one count of transmitting a kidnapping threat.

Sabrina Puglisi, Mr. Fleury’s lawyer, said she was disappointed that the judge did not place Mr. Fleury in a residential treatment program, given that he has autism spectrum disorder. However, she said, she was pleased the judge’s sentence was much lower than the maximum 20 years that Mr. Fleury had faced.

“The judge made a strong argument that this type of trolling behavior on the internet is not OK, not acceptable and it won’t stand,” Ms. Puglisi said in an interview on Monday. “He wanted to send a message to deter people from doing the same.”

What will happen when FDC or other federal prisons get coronavirus?

Will the corrections officers (who are already short staffed) show up to work?
Will prisoners be locked in their rooms 24-7?
Are the feds ready?

The virus is already in Chinese prisons.  From the LA Times:

Prisons are an ideal environment for viral transmission, according to medical experts. Doctors recommend keeping a distance of at least 6 feet from any sick person to avoid contagion from respiratory droplets when they cough or sneeze. Confirmed cases should remain in complete isolation, with the door closed.
“You aren’t going to see bottles of Purell. You’re going to see people existing very close together, which aids transmission,” said Brandon Brown, an epidemiologist at UC Riverside.
Perhaps the closest comparison to the prison scenario would be cruise ships, he said, where large populations living in close quarters have illustrated the virus’ explosive spread. Scientists have another concern: feces. In addition to the virus surviving for hours on surfaces — handrails, elevator buttons and even exchanged business cards — researchers suspect major contagion occurs in shared bathroom settings.

"They want me to lie. They’re yelling at me.”

That was Rick Singer, the ringleader and main snitch in the Varsity Blues case describing what the case agents wanted him to do.  That should make your blood boil of course.  But the cover-up by prosecutors is just as bad, not disclosing this obvious Brady material until after twenty of the defendants have already pleaded guilty and served their time. It's just outrageous.

From the NY Times:

Since the mastermind of the college admissions scandal, William Singer, pleaded guilty last March to racketeering and other charges, he has been mostly offstage, paddleboarding and enjoying the California sun while many of his former clients head off to prison.

But this week, Mr. Singer, who admitted to organizing a scheme to cheat on tests and bribe college coaches to get students into elite schools, was again the center of attention. Lawyers for the actress Lori Loughlin and other parents said that notes Mr. Singer had taken while cooperating with federal investigators showed that they pushed him to lie to incriminate his clients.

They said that Mr. Singer’s own words suggested that parents did not knowingly engage in a conspiracy to bribe coaches, as prosecutors have argued, and they accused prosecutors of sitting on the evidence for months in violation of their legal obligations.

“Loud and abrasive call with agents,” Mr. Singer wrote on Oct. 2, 2018, in a note with several typos and misspellings. “They continue to ask me to tell a fib and not restate what I told my clients as to where there money was going - to the program not the coach and that it was a donation and they want it to be a payment.”

He added that the agents were essentially “asking me to bend the truth.”

In a hearing on Thursday, a federal judge called the allegations of prosecutorial misconduct “very serious” but did not rule on the issue, directing the parties to submit further motions.

Ms. Loughlin’s lawyers had written in a court filing on Wednesday that the evidence in Mr. Singer’s notes was “devastating to the Government’s case and demonstrates that the Government has been improperly withholding core exculpatory information, employing a ‘win at all costs’ effort rather than following their obligation to do justice.”

I previously wrote about how prosecutors were trying to bully Aunt Becky into pleading guilty.  Turns out they were doing much worse!

So what will happen now? The judge took various motions under advisement.  But the sad truth is that the likelihood that anything will happen to the prosecutors or agents who engaged in this misconduct -- or to the case itself -- is very low.  The right result would be to issue severe sanctions, including dismissal.  That's the only way that we are going to stop prosecutorial misconduct, which is a real problem for the criminal justice system.

The judiciary exists to act as a check on the executive branch.  But unfortunately we don't see much of that at all when it comes to misconduct. Instead, we hear: don't do that again; it wasn't intentional; there was no prejudice; it was harmless; and so on. So prosecutors and agents keep doing it.

At sentencings every day in every courtroom around the country, we hear about deterrence and why severe sentences are needed.  Let's be consistent with prosecutorial wrongdoing.

Roy Altman speaks for new judges at SCOTUS

Very cool honor for Judge Altman who spoke to and on behalf of the new judges (class of '19).  Justice Thomas spoke for the Court, and Justices Sotomayor, Alito, and Kavanaugh attended. Here are some pictures: