11th Circuit procedures for oral argument week of March 30

Two choices — submit on the papers or do it by phone. The panel is Carnes, Marcus, and Luck. Here’s the email that went out this morning (I have an argument on 4/2).

Supreme Court and BOP closed, other updates

No oral arguments for the Supremes in March.

And BOP is closed for 30 days -- no visits of any kind and no movement.

As of this morning, the 11th Circuit is still planning on conducting oral arguments the week of March 30. 

District Court is still open but judges are being very good about continuing matters and trying to help. 

SDFLA cancels jury trials scheduled to begin March 16 until March 30 (UPDATED WITH ORDER)

Update -- here's a link to the order.

They won't occur until "further order of the Court."

"All trial-specific deadlines in criminal cases scheduled to begin before March 30, 2020, are continued pending further order of the Court.  Individual judges may continue trial specific deadlines in civil cases in the exercise of their discretion."

There's more to the Order, but no link yet on the Court's webpage.  As soon as there is one, I will post it.

Of note: "Judges are strongly encouraged to conduct court proceedings by telephone or video conferencing where practicable."  But criminal matters "such as initial appearances, arraignments, detention hearings, and the issuance of search warrants" before Magistrate Judges "shall continue to take place in the ordinary course."  And Grand Juries are still going forward.

Federal courts around the country have started to suspend jury trials and other hearings

The SDNY is an example.  From the NY Post:

The federal court district that covers Manhattan, the Bronx, Westchester County and several other New York counties will suspend jury trials that are scheduled to begin next week in an effort to stanch the spread of coronavirus, court officials said Thursday.

The suspension comes as the Southern District of New York attempts to limit the number of people entering federal courthouses in Lower Manhattan and in Westchester County amid the outbreak, District Executive Edward Friedland said. The court suspended non-case-related activity Wednesday.

There are also issues with prison visits in that district. The Post also covers the horrible conditions at MCC in New York with Avenatti:

“Mr. Avenatti’s cell was infested with rats. The jail reeks or urine. As of yesterday, Mr. Avenatti had not shaved in weeks. Meanwhile, across the country, public officials are declaring states of emergency as a result of the spread of the coronavirus,” [Scott] Srebnick wrote.

“Health officials are uncertain of the actual risks. And, by all accounts, a prison facility poses among the highest risks of spread of infection,” he added.

“Given the uncertainty regarding the coronavirus, the ease with which it spreads, and the documented unsanitary conditions at the MCC-New York, I am requesting that the … background interview be adjourned,” he wrote.

There are lots of rumors floating around about what SDFLA is going to do and what is going to happen with FDC. (One rumor is that social and legal visits are going to be shut down for a few weeks.) Also unclear is whether the 11th Circuit will go forward with oral arguments.  As of now, everything is still a go. I will post updates as soon as I have official word.

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.