The Florida Supreme Court has jumped the shark

 I mean, is the Court really going to deny CLE credit for organizations (including the Florida Bar and ABA!) who require diverse CLE panels?  Apparently so.  From Law.com:

Attorneys, professional organizations and legal experts are lashing out at the Florida Supreme Court for a rule that is shaking up lawyers’ ability to receive credit for continuing-education courses required to keep practicing.
The controversial rule, issued by the court in April, prohibits The Florida Bar from approving continuing-education courses offered by any sponsor “that uses quotas based on race, ethnicity, gender, religion, national origin, disability or sexual orientation in the selection of faculty or participants.”
The court’s decision came in response to a move by The Florida Bar’s Business Law Section, which had adopted a policy regulating composition of faculty at section-sponsored continuing legal education programs.
The Bar section’s policy “imposes quotas” requiring a minimum number of “diverse” faculty, defining diversity in terms of membership in “groups based upon race, ethnicity, gender, sexual orientation, gender identity, disability, and multiculturalism,” the court’s April 15 order said.
The section’s diversity requirement was similar to one endorsed by the American Bar Association in 2016, which means the Supreme Court’s order has also jeopardized Florida lawyers’ participation in ABA continuing-education courses.

The ABA struck back with this brief, authored by appellate gurus Elliot H. Scherker and Brigid F. Cech Samole.  It also issued this press release.

There has been lots of criticism of the Court's opinion, including articles like this one from Above the Law, which concludes like this: "Please tell me what century the Florida Supreme Court is in, because it sure doesn’t look like mine or does it?"

The ol' grouping reversal

 Joe Exotic's conviction was affirmed.  But he got a new sentencing based on a grouping violation under the Sentencing Guidelines.

A win is a win.

The opinion is here.

AP story:

A federal appeals court ruled Wednesday that “Tiger King” Joe Exotic should get a shorter prison sentence for his role in a murder-for-hire plot and violating federal wildlife laws.

Joe Exotic, whose real name is Joseph Maldonado-Passage, was sentenced in January 2020 to 22 years in federal prison after being convicted of trying to hire two different men to kill animal rights activist Carole Baskin. A three-judge panel for the U.S. Court of Appeals for the 10th Circuit in Denver found that the trial court wrongly treated those two convictions separately in calculating his prison term under sentencing guidelines.

The blond mullet-wearing zookeeper, known for his expletive-laden rants on YouTube and a failed 2018 Oklahoma gubernatorial campaign, was prominently featured in the popular Netflix documentary “Tiger King: Murder, Mayhem and Madness.”

The panel agreed with Maldonado-Passage that the court should have treated them as one conviction at sentencing because they both involved the same goal of killing Baskin, who runs a rescue sanctuary for big cats in Florida. According to the ruling, the court should have calculated his advisory sentencing range to be between 17 1/2 years and just under 22 years in prison, rather than between just under 22 years and 27 years in prison. The court ordered the trial court to re-sentence Maldonado-Passage.

Podcast interview with Judge Robin Rosenbaum

 

Dear Friends,

I hoped you enjoyed the premiere episode of Season 3 of For the Defense last week with Judge Charles Breyer from San Francisco.  This week, we have another fantastic guest -- 11th Circuit Judge Robin Rosenbaum.

You can access it on Apple, Spotify, or any other platform from our website here.

Judge Rosenbaum currently serves on the court of appeals, but she also has been a district judge, a magistrate judge, a federal prosecutor, and a law clerk.  So she has a really interesting perspective on the criminal justice system and the courts in general.  I think you'll really enjoy hearing from her.

Next week, we will conclude the mini-season with Chief Judge William Pryor, the Chief of the 11th Circuit, who resides in Alabama.  A great and fascinating guest!

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 next week.

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. .

Hosted by David Oscar Markus and produced by rakontur

There's a new Chief in town

 And her name is Cecilia Altonaga. 

Congrats to Judge Altonaga -- our first woman Chief -- on the new position.  And a big thank you to Judge Moore for leading the Court over the past 7 years and through the pandemic.

Not only is Judge Altonaga the first woman Chief Judge of the Southern District of Florida, I believe this is the first time in this District that a Chief Judge was a law clerk to the former Chief Judge (in this case, Edward B. Davis).  Judge Altonaga is Judge Davis' second favorite law clerk.

I asked Judge Altonaga what her goals were as the new Chief and she said: "My initial goal is to learn to juggle all the new administrative responsibilities with those attendant to being a district court judge.  The next goal is to steer the Court to a safe resumption of jury trials and in-person proceedings.  Beyond that, I simply hope to be a careful listener and wise administrator, in keeping with the Court's fine tradition and reputation."

In one of her first Administrate Orders, Altonaga extended the speedy clock till Labor Day in this order. Interestingly, the order references 703 cases currently awaiting trial.

Congrats again and good luck!  It can't be easy to try and navigate a bunch of federal judges....

Michael Avenatti sentenced to 30 months in prison (UPDATED)

His guidelines were 9 years at the low end.

This is a good example for judges around the country about how the guidelines make no sense.  Many judges would have given him the high end of the guidelines after a trial for a lawyer who, the judge found, abused the trust of his client.  

But the guidelines made no sense.  Even for someone who went to trial.  Even for a lawyer.  Even for someone who had other cases pending.  Even for someone who had a number of the piling-on enhancements (like sophisticated means, abuse of trust, and so on).

The fraud guidelines make absolutely no sense, and the judge in N.Y. (and it wasn't even Judge Rakoff) said so.  Good.

Miami's very own Scott Srebnick handled the sentencing.

Here's an article about it:

Michael Avenatti was sentenced to two and a half years in prison Thursday after being found guilty of an extortion scheme against Nike, just one of the criminal cases against Stormy Daniels's former lawyer and the onetime left-wing media darling.

The Justice Department’s indictment against Avenatti charged him with extortion and wire fraud, saying he tried to extort at least $22.5 million from the sporting apparel company. His three-week trial began in late January 2020, and he was found guilty the next month.

Judge Paul Gardephe of the Southern District of New York, the presiding judge during Avenatti’s 2020 trial, sentenced him to an aggregate sentence of 30 months. The judge said in the New York City courtroom on Thursday, “Mr. Avenatti’s conduct was outrageous. He hijacked his client’s claims, and he used those claims to further his own agenda — which was to extort millions of dollars from Nike to enrich himself.” The George W. Bush appointee added: “Mr. Avenatti had become drunk on the power of his platform, or what he perceived the power of his platform to be. He had become someone who operated as if the laws and rules that apply to everyone else didn’t apply to him.”

UPDATE -- three factors that helped sway the judge to give a below-guidelines sentence were (1) Avenatti's remorse, (2) the failure to charge co-conspirator Mark Geragos (which caused a disparity), and (3) the conditions of his pretrial confinement (during COVID at MCC).  From NBC:

Gardephe said that in the Nike scheme, “Mr. Avenatti’s conduct was outrageous.”  "He hijacked his client’s claims, and he used him to further his own agenda, which was to extort Nike millions of dollars for himself,” said the judge, who also sentenced Avenatti to three years of supervised release for the case, in which Avenatti was convicted at trial last year. “He outright betrayed his client,” Gardephe said....

But Gardephe added that Avenatti deserved a lighter sentence than the range recommended by federal guidelines — from nine years to 11-years and three months — because, the judge said that for the first time in the case, “Mr. Avenatti has expressed what I believe to be severe remorse today.”

The judge also cited the brutal conditions in which Avenatti was kept for several months in a Manhattan federal prison after his 2019 arrest. And Gardephe sharply noted, in justifying the lower-than-recommended sentence, how federal prosecutors did not criminally charge Geragos in spite of what they have said was his active participation with Avenatti in the shakedown.

The judge ordered Avenatti, who remains free on bond, to surrender on Sept. 15 to begin his sentence, which Gardephe recommended be served in at the federal prison camp in Sheridan, Oregon.

Breaking — Sen. Rubio JNC announces interview schedule

 Here’s the list. More to follow shortly. 

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.