“Lori Loughlin case should be dismissed if the prosecutors cheated”

That’s the title of my latest piece in the Hill. Here’s the intro:

Putting aside whether we really want cheating on a test or lying on a resume to count as a federal crime, we can all agree that prosecutors should not be able to cheat to obtain a conviction — especially in a case about cheating.
Yet it now appears that federal prosecutors and agents in the Lori Loughlin case may not only have been cheating but then suppressing the evidence of their cheating until after they failed in trying to get her to plead guilty.Recall that Loughlin and her husband are accused of bribing coaches at the University of Southern California with $500,000 to get their two daughters admitted. The money, according to the prosecutors, would go through the mastermind of the whole affair, Rick Singer, and then to the coaches. Loughlin has said from the beginning that she never thought that her money was going directly to a coach; instead she thought she was making a donation to the school or to the athletic department, which would be entirely legal. The prosecutors openly scoffed at this defense, saying that they had recordings of Loughlin and her husband which demonstrated that they knew the money was going to bribe the coach.They did so even though there was documentary evidence that appears to back up exactly what the defense was saying.

SDNY judges doing great work on compassionate release

The latest decision, by Judge Alison Nathan, rips the absurd BOP policy of holding defendants for 14 days after release orders in “quarantine.”  The truth, of course, is that it’s not a quarantine at all and just places the defendant at further risk.  The judge — aligning herself with the majority of courts around the country — also says that exhaustion is not required.

Politico covers the opinion here:

A federal judge in New York has slammed the federal Bureau of Prisons for what she contends are “illogical” and “Kafkaesque” quarantine policies that put inmates and the community at greater risk of contracting coronavirus.

U.S. District Court Judge Alison Nathan, in a decision dated Sunday, excoriated federal officials over their practice of putting inmates considered or approved for early release into a pre-release quarantine before they are sent home. The period typically lasts 14 days, but the judge noted that it can be extended, potentially repeatedly, if another inmate in the same group tests positive for the virus.

Nathan delivered the stinging rebuke of the federal prisons’ policy as she ordered the immediate release of Gerard Scparta, a former New York Police Department officer who pleaded guilty last year to involvement in a Social Security disability fraud scheme.

“In these circumstances, community spread through individuals not showing symptoms is inevitable, including in units of inmates who have been approved for home confinement,” Nathan wrote. “This is an illogical and self-defeating policy that appears to be inconsistent with the directive of the Attorney General, ungrounded in science, and a danger to both Mr. Scparta and the public health of the community.”

***

“Mr. Scparta is currently stuck in the bizarre limbo of the Bureau of Prisons’ quarantine policy, which, as the Court has discussed, achieves the backward result of prolonging incarceration and increasing community spread,” she added.

SCOTUS updates

1.  The Supreme Court ruled this morning that juries must be unanimous.  You'd think this one would be unanimous from the Justices, but it was 6-3.  Alito wrote the dissent (no surprise), but Roberts and Kagan joined him on stare decisis grounds.

2.  The Court also granted cert from this 11th Circuit case (Van Buren) on the following issue:

Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

 Judge Rosenbaum wrote the opinion (joined by Martin and visiting judge Boggs), which starts this way:

Perhaps Dudley Field Malone said it best when he opined, "One good analogy is worth three hours’ discussion."* Or in this case, 15 pages of discussion. See infra at pp. 1199–205.

 Take, for example, this case.

"[A] lawsuit before a court" is a pretty big deal to most people. But a generic "question" or "matter," in common usage, maybe not so much.

That impression may change, though, if we clarify what we mean by "question" or "matter" in a specific context by analogizing to something else. So if we say that, for our purposes, to qualify as a "question" or a "matter," the question or matter must be of the same significance or scope as "a lawsuit before a court," a person would understand that we are not talking about just any old question or matter; we are referring to only questions or matters on the same scale as "a lawsuit before a court." To use a metaphor, the analogy here is a bridge to understanding.

In this case, though, that bridge was never built. The government charged Nathan Van Buren with honest-services fraud (through bribery) for undertaking an "official act" in his capacity as a police officer, in exchange for money. At the close of the evidence, the district court instructed the jury that an "official act" is a decision or action on a "question" or "matter." But it did not inform the jury that the "question" or "matter" in this context must be comparable in scope to a lawsuit, hearing, or administrative determination. The jury convicted Van Buren.

Since the jury was not instructed with the crucial analogy limiting the definition of "question" or "matter," and because the government itself did not otherwise provide the missing bridge, we cannot be sure beyond a reasonable doubt that the jury convicted Van Buren of the offense that Congress criminalized when it enacted the honest-services-fraud and bribery statutes. For this reason, we must vacate Van Buren’s honest-services-fraud conviction and remand for a new trial on that count. Van Buren was also charged with and convicted of computer fraud, and we affirm that conviction.

*Richard Nordquist, The Value of Analogies in Writing and Speech , ThoughtCo., https://www.thoughtco.com/what-is-an-analogy-1691878 (last visited Oct. 8, 2019). Along with Clarence Darrow, Dudley Field Malone defended John Scopes in the 1925 "Scopes Trial," formally known as State v. Scopes . Scopes Trial , Encyclopaedia Britannica, https://www.britannica.com/event/Scopes-Trial (last visited Oct. 8, 2019) ("Scopes Trial "); Malone’s Trial Speech (Full Text) , Historical Thinking Matters, http://historicalthinkingmatters.org/scopestrial/1/sources/44/fulltext/ (last visited Oct. 8, 2019) ("Malone’s Trial Speech "). In that case, Tennessee, led by William Jennings Bryan, prosecuted Scopes for allegedly teaching evolution at a Tennessee high school. Scopes Trial . Scopes was convicted and fined $100. Scopes v. State , 154 Tenn. 105, 289 S.W. 363, 367 (1927). The Tennessee Supreme Court then vacated the judgment since Tennessee law required a jury—not a judge—to assess any fine of more than $50.00, but in Scopes’s case, the trial judge had done so. Id. The Tennessee law Scopes was accused of violating was ultimately repealed in 1967. Scopes Trial .

Updated BOP and FDC-Miami numbers

As of 04/18/2020, there are 479 federal inmates and 305 BOP staff who have confirmed positive test results for COVID-19 nationwide.

There are 5 staff members at FDC-Miami who have tested positive.

The good news -- no clients in custody have tested positive at FDC-Miami.

The bad AND ABSURD news -- FDC-Miami has not tested one inmate!  You read that right -- none of the inmates have been tested for COVID-19.  Instead, FDC-Miami is doing taking random temperatures twice a week.  Truly unbelievable.

Friday news and notes

1. The Herald is doing a lot of good reporting on the awful conditions in Florida prisons and what judges and lawyers are doing to help folks.

2. Michael Cohen was released. (So was Avenatti).

3. But more needs to be done. From the Brennan Center for Justice.

4. From Professor Berman's blog, check out these numbers which are now dated:

To provide some context for these number, consider that the federal inmate population is "only" 175,000, and yet there are already 13 official COVID deaths within the federal inmate population [as of 4/13; this number is now way higher]. This is more COVID deaths than are being reported right now by the Worldometer accounting in seven distinct US states: Wyoming (population nearly 600,000), Alaska (nearly 750,000), North Dakota (nearly 800,000), South Dakota (nearly 900,000), Montana (over 1 million), Hawaii (nearly 1.5 million), and West Virginia (population nearly 1.8 million). This is also more COVID deaths than are reported right now by the Worldometer accounting in countries such as Qatar (population nearly 3 million), New Zealand (nearly 5 million), Slovakia (nearly 5.5 million) Singapore (over 5.5 million).

Judge Goodman orders ICE to release corona numbers

Well done!

The Herald has the story here:

A federal magistrate judge in Miami has ordered U.S. immigration officials to disclose how many of its detainees and third-party contractors at three South Florida detention centers have tested positive for coronavirus.

The court order was issued Tuesday night following a Miami Herald story that revealed U.S. Immigration and Customs Enforcement did not consider its contractors ICE “staff,” and that the agency said it had no obligation to include them on its website detailing how many employees at its detention centers nationwide had contracted the virus. The Herald also reported that the agency got around having to disclose that a Miami detainee was sick with COVID-19 because the detainee was technically no longer at the detention center, but rather at a hospital. All three detention centers in South Florida are operated by third-part contractors.

“That isn’t something we have to provide,” the agency said, later noting that ICE’s role isn’t to publish or discuss information about a third party.

The Herald’s reporting was cited in a federal lawsuit filed in Miami federal Court Monday seeking the release of detainees at three South Florida detention centers. As part of the case — filed by immigration advocates against ICE and the U.S. Attorney General— Magistrate Judge Jonathan Goodman ordered that the government file the previously undisclosed information by Friday.

As of Wednesday morning, ICE says only 21 of its employees have tested positive. However, that does not include third-party contractors that operate at least 217 of its 222 detention centers nationwide.

“The purpose of the declarations is to provide the Court with information, and the information should be comprehensive and not limited by technicalities, such as whether a guard or officer is a government employee or an employee of a third-party contractor or contracting vendor,” Goodman said in his order. “For purposes of gauging the health risk to detainees, it matters little whether a COVID-19-infected guard or officer receives a paycheck from the United States or from Akima (or some other company).”

Akima Global Services is the government contractor that operates ICE’s Krome detention center in Miami-Dade. Last week, the Herald reported that two guards had contracted the virus, and that at least 60 others had been sent home to wait for test results or to quarantine.

In the magistrate judge’s order, Goodman specified that “staff members” is not limited to actual ICE employees or employees of the United States or one of its agencies or departments.

“To the contrary, it is designed to encompass anyone and everyone who works at the three facilities — including, by way of example, employees of third party contractors who provide services and personnel to the detention centers,” he said.

He continued: “Thus, to provide one specific illustration, if a company, such as Akima, provides services or employees at the Krome detention facility, then Akima employees who work as guards (or nurses or counselors or administrative aides or any other position at the detention center) would be included in the term ‘staff members.’ This same definition applies for all three detention centers.”

Goodman told ICE that if the clarification required them to obtain information from its contractors, “then so be it. The point is, I don’t want to be on the short end of the information stick.”

News & Notes

1.   David Ovalle covers the exploding numbers of COVID+ inmates in Florida prisons, which are being grossly underreported:

The U.S. Bureau of Prisons is finally acknowledging that at least two employees at the Miami Federal Detention Center have tested positive for COVID-19, according to its public coronavirus tracking website. A union official said Monday that a third officer at the Downtown Miami facility has also tested positive, and more are awaiting test results.

The official, Jose Rojas, has been openly critical of how the Bureau of Prisons has handled the coronavirus crisis. He said officers were not allowed to wear masks while on duty until April 8, and the department continues to transport inmates from facility to facility, elevating the risk of spreading the highly contagious virus.

“They’re lying about the numbers they are posting on their website,” said Rojas, the Southeast regional vice president of the corrections council of the American Federation of Government Employees. “They won’t want to make themselves look bad.”

2.  The 11th Circuit in a 2-1 decision (Newsom wrote the majority, joined by Tjoflat; dissent by Hull) ruled that the Crimes Victim Rights Act does not apply to the Jeffrey Epstein case because no criminal case was ever brought.  120 pages of decisions here.  Here's the intro to the majority:

This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims’ Rights Act of 2004. Petitioner Courtney Wild is one of more than 30 women—girls, really—who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein. In her petition, Ms.Wild alleges that when federal prosecutors secretly negotiated and entered into a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA—in particular, her rights to confer with the government’s lawyers and to be treated fairly by them.
Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark—and, so it seems, affirmatively misled—by government lawyers, we find ourselves constrained to deny her petition. We hold that at least as matters currently stand—which is to say at least as the CVRA is currently written—rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment. Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered. It’s not a result we like, but it’s the result we think the law requires.

 Things get a little testy.  Newsom:

Having so held, two final words.
First, regarding the dissent: Although we have endeavored along the way to meet a few of the dissent’s specific critiques, we must offer here two more global responses. As an initial matter, with respect to the dissent’s charge (Dissenting Op. at 65) that we have “dresse[d] up” what it calls a “flawed statutory analysis” with “rhetorical flourish”—well, readers can judge for themselves whose rhetoric is in fact more florid. See, e.g., id. at 61 (“So how does the Majority bail the U.S. Attorney’s Office out of its egregious CVRA violations . . . ?”); id. at 94 (“So how in the holy name of plain text . . . ?”); id. (“The Majority hacks away at the plain text with four tools.”); id. (“The Majority cherry picks the meaning of ‘case’ . . . .”); id. at 96 (“Nonsense.”); id. at 98 (“As its third tool to axe the plain text . . . .”); id. (“Do not fall for this.”); id. 106 (accusing us of ruling “by judicial fiat”); id. at 109–10 (twice accusing us of fearing crime victims more than “wealthy defendants”).

Hull:

 While the Majority laments how the national media fell short on the Jeffrey Epstein story, this case is about how the U.S. prosecutors fell short on Epstein’s evil crimes. See Maj. Op. at 6. Our criminal justice system should safeguard children from sexual exploitation by criminal predators, not re-victimize them. The Majority concludes that our Court is constrained to leave the victims “emptyhanded,” and it is up to Congress to “amend the Act to make its intent clear.” Id. at 19, 52. Not true. The empty result here is only because our Court refuses to enforce a federal statute as Congress wrote it. The CVRA is not as impotent as the Majority now rewrites it to be.
Given the undisputed facts that the U.S. Attorney’s Office completed its investigation, drafted a 53-page indictment, and negotiated for days with Epstein’s defense team, the Office egregiously violated federal law and the victims’ rights by (1) not conferring one minute with them (or their counsel) before striking the final NPA deal granting federal immunity to Epstein and his co-conspirators, (2) intentionally and unfairly concealing the NPA from the victims, as well as how the upcoming State Court plea hearing would directly affect them, and (3) affirmatively misrepresenting the status of the case to the victims after the NPA was executed. I would remand for the District Court to fashion a remedy.
For all of these reasons, I respectfully dissent from the Majority’s (1) decision that the crime victims of Epstein and his co-conspirators had no statutory rights whatsoever under the Crime Victims’ Rights Act, and (2) denial of the victims’ petition in this case as a matter of law.

3. And to further yesterday's post about Zoom hearings, check out this Broward judge who says to put on a shirt and get out of bed!

“It is remarkable how many ATTORNEYS appear inappropriately on camera,” the judge wrote in the letter posted on the Weston Bar Association website. “We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers.

“And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit. So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.”

Hearings in the age of corona (UPDATED -- SCOTUS TO PROCEED VIA TELECONFERENCE)

UPDATE -- The Supreme Court announced Monday morning that it will proceed with its May calendar by teleconference. Order here.

So how many of you have done hearings via teleconference or video conference?  How is it going?  What are some tips/advice for doing the hearing?  Judges, what advice do you have for lawyers?

Here's an interesting information page from Texas with lots of resources for both lawyers and judges on how to do these sorts of hearings.  A snippet:

Tips for Successful Hearings

• Dress in a soft solid color (like a black robe for judges). If a tie is worn, use a solid tie rather than one with a pattern.

• When speaking, remember to look directly at the webcam, not at the screen.

• Position the camera at your eye level or slightly above eye level.

• Be mindful of what is behind you, choose a solid neutral wall if possible - or use our Judicial Virtual Background.

• Check the lighting. Light from a window behind you might blind the camera, making you look dark. Light above you in the center of a room might also cast shadows. Ideally, position a lamp, or sit facing a window, where light is directly on your face. Also be aware that your monitor casts light that can make you look blue.

• Remind the participants to speak one at a time and to pause prior to speaking in case there is any audio/video lag.

• Encourage the participants to mute themselves or mute them yourself when not speaking in order to avoid any potential background noise.

• Only email the link to the hearing to those participating in the hearing, encourage the public to view the hearings on the court's YouTube channel. Consider using a password for the hearings.

• Test your connection and setup with Zoom by testing your connection with a test meeting.

So far, my experience has been that federal judges are mostly doing teleconference hearings and not video hearings.  So you can still wear your pajamas and not brush your hair.

State courts are doing more video hearings from what I am hearing.  Here is a Herald article by David Ovalle on the first Zoom hearing, and a picture: