Judge Charles Breyer joins For the Defense Podcast for premiere of Season 3

 

FOR THE DEFENSE SEASON 3 LAUNCH U.S. District Judge Charles Breyer We're back! In this third season of For the Defense, I will be speaking with three fascinating and experienced judges who have a lot to say about the criminal justice system.  We launch today with Judge Charles Breyer.  You can access it on Apple, Spotify, or any other platform from our website here. In the first two seasons, we spoke with great criminal defense lawyers around the country about their most fascinating cases, including the late F. Lee Bailey, Alan Dershowitz, Roy Black, Michael Tigar, Tom Mesereau, Donna Rotunno, and so many others.  Then there was a bonus episode with Judge Jed Rakoff (S.D.N.Y.), which was a big hit.  So I decided to do this mini-season in which I speak to three judges about the criminal justice system from their perspectives.  After Judge Breyer (who hails from San Francisco), next week Robin Rosenbaum joins the show.  She sits on the 11th Circuit Court of Appeals and lives in South Florida.  And then we'll conclude the mini-season with Chief Judge William Pryor, another 11th Circuit Judge, who resides in Alabama. It's not too late to catch up on Seasons 1 and 2 if you missed them (both of which are approved for CLE credits in Florida).  This mini-season with judges also has been approved for CLE, and I will give out the code at the end of the third episode. Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.  Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

Happy Birthday to the Southern District of Florida Blog!

Happy 16th (!!) Birthday to the Southern District of Florida Blog!  

Sixteen years ago in 2005, on the July 4 weekend, I started this blog and it's been a fun run of over 4,000 posts and over 5.2 million page views.  

I'm really proud of this project I started all these years ago and am so grateful for all of the connections and friends I've made through the blog.  This is a great legal community and it's really like a family that I am happy to be a part of.

To put the 16 years in perspective, when the blog was started:

The Wilkie Ferguson courthouse was not yet open.

Judge Zloch was Chief Judge of the District.

Mel Martinez was one of our Senators.

Alex Acosta had just been named Acting U.S. Attorney.

The Supreme Court had seven different Justices: Rehnquist, Scalia, Stevens, Souter, Kennedy, Ginsburg, and O'Connor.

There was no Twitter.

There was no podcasting.  (I now have one of my own, called For the Defense).

There was no Zoom.

My firm had one lawyer, me (it now has 6).

I had one daughter (I now have 3 and one headed to college!).

We still don't have a Floridian serving on the Supreme Court, which was the very first post! But that may change with Ketanji Brown Jackson as the leading candidate to replace Justice Breyer if he retires.

Thanks again to all of you for reading and for the tips. As Brian Tannebaum pointed out to me, the blog is now old enough to drive! I still very much enjoy keeping tabs on the most interesting and exciting District in the country.

“Bill Cosby is free; Ghislaine Maxwell should be too.”

 That’s the title of an op-ed I just wrote for the New York Daily News in light of the Cosby ruling.  From the conclusion to the piece:

The case against Ghislaine Maxwell is extremely weak — based on 25-year-old, uncorroborated allegations made only after Epstein died. A jury should reject those flimsy and stale charges. But in the event of a conviction, she should get relief on appeal for the same reason Cosby did — prosecutors should have to live up to the deals they make. As that court explained: “A contrary result would be patently untenable. It would violate long-cherished principles of fundamental fairness. It would be antithetical to, and corrosive of, the integrity and functionality of the criminal justice system that we strive to maintain.”

The Cosby case reaffirms that a prosecutor is bound to act with integrity and the public must be able to rely on his word. What a concept.

"Thank God that juries are smarter than judges."

That was criminal defense lawyer Frank Carson after he was charged with murder, went to trial that lasted 17 months, and was acquitted by a jury.  It's an amazing (and very sad) story, covered by the L.A. Times in these three articles, here, here, and here.  

Above is his mug shot, where he wouldn't give the prosecution the satisfaction of looking grim. Carson loved to stick it to the man.  And he believed that was payback after a long career of fighting and winning.  Sadly, he died shortly after winning his own trial, but not before he got to try another case as a lawyer.

This is how the third installment from the L.A. Times starts:

They were a year into the preliminary hearing with no visible end, and Frank Carson was close to despair. He was trapped where so many of his clients had been, alone in a chilly cell in a Stanislaus County jail. He had rebuffed every overture to cut a deal, to plead, to inform on codefendants in exchange for lenience.

But guilt pierced him. He blamed himself for the plight of his wife and stepdaughter, out on bail but charged in the so-called murder plot he had supposedly masterminded. He blamed himself for the continued incarceration of three other codefendants, former highway patrolman Walter Wells and Pop N Cork liquor store owners Baljit “Bobby” Athwal and brother Daljit “Dee” Atwal. All of them had refused to implicate Carson, telling prosecutors they had nothing to say.

“Boys,” Carson said one day, sitting before them in a courthouse holding room.

He had found a solution, he explained. He would take the blame, so they could go free. There seemed no other way out. He was in his 60s, with no kids; they were younger men, and fathers. The D.A. wanted him. What he did not tell them was that he had knotted up a sheet to keep under his pillow, to hang himself before they put him on a bus to prison.

“No, Mr. Carson,” his codefendants said. The brothers were Sikhs from the Punjab region of India. To let Carson take the blame for something he hadn’t done would dishonor the family, they explained — they’d be killed if they returned to their village.

Where is the Biden administration on the CARES Act and prisoners who were released during the pandemic?

 During the Trump administration, about 4,500 at-risk inmates were released during the pandemic.  But in the last few days of his presidency, Trump's DOJ said everyone needed to go back in when the crisis ended. It was a really weird decision.  Many have thought Biden would rescind that order, but he hasn't and has rightfully faced a lot of criticism because of it.  

In the meantime, BOP is doing BOP things... here's an article by the WaPo about a 76-year old grandmother who was released but taken back into custody because she was taking a class on word-processing and didn't immediately answer her phone.  Our system is so messed up... 

In the year she was out of prison, Gwen Levi, 76, was thriving.

After serving 16 years in different federal facilities for dealing heroin, Levi was allowed to leave last June and finish her 24-year sentence in home confinement under the supervision of federal prison officials. She moved in with her 94-year-old mother in Baltimore and volunteered at prisoner advocacy organizations, hoping for a paying job to come along. She was also building her relationships with her sons and grandsons.

But Levi’s season on the outside ended June 12 after she attended a computer word-processing class in Baltimore’s Inner Harbor. A Federal Bureau of Prisons incident report said she was out of contact for a few hours with the officials supervising her.

Levi is now at the D.C. jail awaiting transfer to a federal facility, according to her attorney, Sapna Mirchandani, of Maryland’s Office of the Federal Public Defender.

“There’s no question she was in class,” Mirchandani said. “As I was told, because she could have been robbing a bank, they’re going to treat her as if she was robbing a bank.”

Also, your favorite blogger was on 20/20 Friday night.  Here's a short clip from the two hour episode if you are interested. 

Fane Lozman to take on Department of Justice...

 ... and my money is on Fane Lozman.  The guy has gone to the Supreme Court twice and won twice.  It's pretty amazing.  This time, DOJ is hounding him about a floating home on his property.  Here's the letter he received:

Here is the home at issue:

I spoke to Mr. Lozman and he told me that he was going to respond to the DOJ with a letter that basically says "F*** off."  And that he did just that.  Here's the intro to his response:

Dear Brandon

Your letter, attached below, is a sloppy attempt to intimidate me.  Let's start with my answer to your settlement offer, that would require me to remove my floating residential structure from my homesteaded, private property in ten days. 

I am never moving my floating home off of my private property!

Your request is Un-American.  What country do you represent?

My floating home is not fill, which is usually rock and sand that is placed in submerged lands to create dry land.  Instead my floating home is the legal equivalent of a residential house built on land, as recognized by the State of Florida with my homestead designation, and the U.S. Supreme Court in its opinion, Lozman v. Riviera Beach. 568 U.S. 115 (2013). Both of my cases were argued at Georgetown's Supreme Court Moot Court program.  Did you really graduate from Georgetown law school, because that is hard to believe given the multiple grammatical errors in your letter and lack of comprehension as to what is Supreme Court precedent.  

And it concludes this way:

So go for it, criminally charge me along with pursuing a civil enforcement case, that you can set for trial.  Both the district judge and jury will think that you and Sydney are bullies and have wasted their time with your nonsensical pleadings. By the way, does Attorney General Merrick Garland know that you threatened me with your bullshit letter? Your flippant attitude for SCOTUS precedent, and lack of comprehension as to the limitations of 33 U.S.C.§ 403, reflects poorly on the Department of Justice.  I and others will make sure that it is formally addressed with Attorney General Garland and those in your direct chain of command.

All the best,

Fane Lozman

Chief Judge Pryor channels his inner rapper

 Check out this opinion, involving T.I.:

This appeal is about an initial coin offering of cryptographic tokens promoted by celebrities to fund a new movie-streaming platform. The platform never launched, and the value of the tokens plummeted a few months after the offering. After the limitations period had run, a purchaser, Kenneth Fedance, brought a putative class action for the sale of unregistered securities against Ryan Felton and Clifford “T.I.” Joseph Harris Jr., the purported co-owners of the company that issued the tokens. Fedance asserted that fraudulent concealment equitably tolled the limitations period, but the district court dismissed the complaint as untimely. We affirm.

That's the intro... but then the opinion gets fun, citing to T.I. lyrics throughout.  From CourthouseNews:

In a playful opinion littered with puns referencing Clifford “T.I.” Harris’s songs, a unanimous panel of 11^th Circuit judges upheld the dismissal of a class action securities lawsuit against the rapper and ended investors’ attempts to recoup money they say was lost on worthless cryptocurrency investments.

In a 21-page opinion embellished with no fewer than seven references to T.I.’s oeuvre, a three-judge panel of the Atlanta-based appeals court ruled that the lawsuit failed to plausibly allege that the rapper or his business associate Ryan Felton fraudulently hid information which would have allowed the investors to assert claims under sections of the Securities Act.

***

“Anyone in Fedance’s position could say ‘You Know What It Is,’” U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote on behalf of the panel, referring to T.I.’s 2007 hit featuring Wyclef Jean.

“In conclusory fashion, Fedance alleges that neither he nor putative class members could bring claims for the sale of unregistered securities within the one-year limitations period because Felton and Harris fraudulently concealed the facts necessary to reach the legal conclusion that FLiK Tokens were securities. But you cannot make fraudulent concealment mean “Whatever You Like,'” Pryor wrote, quoting another song title.

Good stuff! A further note -- I interviewed Judge Pryor for my podcast, For the Defense, and his episode will be airing in mid-July.  I think you'll really enjoy hearing him discuss writing, appellate courts, and his background.

It's the first day of summer

Woohooo!

In the old days of Miami, many law offices would close and there would be no trials.  Many Miami courtrooms would close the entire month of August.  

This year on the first day of summer, we have Prime Day.  Any good deals you're looking at?

We also have the Supreme Court finishing the Term.  The WaPo says there is some tentative good news regarding Amy Coney Barrett... that she may be in the Roberts' wing of the conservative court and not the Alito/Thomas wing.  We shall see.

Michael Avenatti's sentencing is coming up next week in SDNY.  Scott Srebnick is representing Avenatti.  Professor Berman over at the Sentencing Law and Policy blog has an interesting post about the guidelines in the case and how the parties seem to agree that they really don't apply.  

Speaking of the Guidelines, Judge Jed Rakoff continues his fantastic real-world critique of how they work.  In his latest sentencing decision, he states: "It appears to me that there has never been a case where the guidelines have been more irrational, silly and ridiculous than in their application to this case."  Reuters covers it here, where he sentences two defendants to 30 and 15 months in a $100 million fraud case. If you want to hear him discuss the Guidelines at length, check out our podcast discussion here.

David Lat is back to full time writing, this time on Substack.  He does a great job, as usual.

A&E's new show Under Oath covers the decision to call Katie Magbanua to testify.  She is represented by the great trial team of Chris DeCoste and Tara Kawass.  

Finally, it was a good weekend for the cruise industry.  Middle District of Florida Judge Steven Merryday in a 124-page ruling held that the CDC could not enforce its coronavirus restrictions and rules for cruise ships in the state.