Happy Earth Day! (Belated)

By Michael Caruso

 Florida is blessed with abundant natural beauty. But, there are many threats and challenges to our environment. In our backyard, there has been decades-old litigation involving the Everglades. The United States initiated this litigation in 1988 to enjoin discharges of phosphorus-laden water into the area and restore the Park and the Refuge to hydrologic conditions that support a balance of native flora and fauna. The parties entered into a consent decree in 1992—a historic agreement. According to sources, a key point in the settlement talks came with then-Gov. Lawton Chiles showed up at a court hearing in 1991 and said: "We want to surrender. I want to find out who I can give my sword to." The parties, of course, continue to litigate the decree. In 2019, Judge Moreno rejected a motion—without prejudice—by the South Florida Water Management District to end the decree.

Other natural resources in our state are at risk. According to the Florida Department of Environmental Protection, our state is home to more large (first- and second-magnitude) springs than any other state. Springs are the window into the health of our groundwater, which is the source of 90% of drinking water for Floridians. Some springs support entire ecosystems with unique plants and animals. They also flow into rivers dependent on the spring’s clean freshwater. Florida's springs face various complex threats, including decreasing spring flows and excessive nutrients. Spring flows decrease because of declining water levels in the groundwater aquifer that sustains them, and excessive nutrients, mainly nitrate, can lead to algal growth and habit degradation.

Recently, the New York Times published an article describing the "slow-motion environmental tragedy" impacting the springs. Jeb Bush, through legislation, created the Florida Spring Initiative in 2001 to research, monitor, educate and provide landowner assistance to reduce the flow of sewage and fertilizer into springs and address declining spring flows. But, as the article details, while restoration work has reversed some damage, nutrient pollution has continued to increase. The photographs that accompany the article alternate between the beautiful and the depressing.

As Floridians, we can remember the environmental improvements made over the decades and recognize we need to work harder if our children and grandchildren are to enjoy the natural beauty of our state.

Varsity Blues to finally be challenged in the court of appeals

 One of the problem with a system geared to pleading guilty is that prosecutors are emboldened to bring questionable legal and factual cases.  The Varsity Blues cases are a good example.  Numerous folks have criticized the legal theory underlying the prosecution -- that paying someone to get your kid into college is a federal offense.  But almost everyone pleaded guilty in that operation because the risks of trial were simply too great.  

Finally, we have a few defendants who will be challenging the case in the First Circuit.  From the NY Times:

Lawyers for a private equity investor and a former casino executive facing federal prison in the college admissions scandal known as Operation Varsity Blues filed appeals on Monday seeking to have their convictions overturned.

Both men were accused of making payments to have their children admitted to elite universities as athletic recruits, even though prosecutors charged that they lacked qualifications to play Division 1 sports.

The men, John B. Wilson and Gamal Abdelaziz, face the longest sentences yet imposed on parents in the admissions scandal, in which more than 50 parents and college coaches were prosecuted for conspiring with William Singer, a college admissions counselor, to arrange “side door” admissions, primarily by using slots on athletic teams.

Mr. Wilson and Mr. Abdelaziz make similar arguments in their appeals — that donations to universities in an effort to secure admissions are commonplace and do not constitute bribery.

Mr. Wilson, a former business executive, was convicted in October on bribery charges and sentenced to 15 months in prison. He was accused of agreeing to pay more than $1.5 million to have his three children admitted to the University of Southern California, Harvard and Stanford.

Lawyers for Mr. Wilson, 62, of Lynnfield, Mass., say in court papers that the key claim against him — that he paid $220,000 to bribe his son’s way into a spot on U.S.C.’s water polo team in 2014 — is legally flawed.

None of the money was intended to personally enrich anyone at the school, they wrote in court papers.

“Donating to a university is not bribing its employees; the school cannot be both the victim of the scheme and its beneficiary,” said the filing in the U.S. Court of Appeals in Boston by lawyers for Mr. Wilson, including Noel J. Francisco, the former U.S. solicitor general.

Of the total $220,000, Mr. Singer forwarded $100,000 as a donation to U.S.C.’s water polo team, for which Mr. Wilson received a thank-you note. Another $100,000 went to Mr. Singer’s nonprofit foundation, which Mr. Wilson thought would benefit U.S.C., according to the appeal.

 

Short list for Magistrate Judge interviews

The Magistrate Judge selection committee has recommended the following names for two open slots:

Augustin-Birch, Panayotta Diane

Brown, Bruce Ontareo

Katz, Randall D.

Marlow, Elena Margarita

Moon, Stefanie Camille

Sanchez, Eduardo Ignacio

St. Peter-Griffith, Ann Marie

Zaron, Erica Sunny Shultz
 

Congrats to all.  The judges will hold their interviews on May 11 and select two.

Your weekend moment of Zen...

 

Johnny Depp learns hearsay. ☠️🤣 pic.twitter.com/WLEzVX3aYf

— jessica gore 🇺🇦✊ (@HuffleBloom) April 21, 2022

Magistrate Judge committee to interview 15 people for 2 slots

 Here's your list of the interviews, which are happening now:

Arteaga-Gomez, Rossana

Aslan, Erin Elizabeth Victoria

Augustin-Birch, Panayotta Diane

Brown, Bruce Ontareo

Corlew, Reginald Roy

Ferrer, Aimee Allegra

Katz, Randall D.

Marlow, Elena Margarita

Massey, Jessica A.

Moon, Stefanie Camille

Sanchez, Eduardo Ignacio

St. Peter-Griffith, Ann Marie

Thakur, Michael Eric

Weiss, Aaron Stenzler

Zaron, Erica Sunny Shultz
 

Should a juror be allowed to sit in a death penalty case where he said: Non-white races were statistically more violent than the white race.

Apparently yes, in Texas. 

The Supreme Court denied cert yesterday, but Justice Sotomayor dissented (joined by Kagan and Breyer) and said:

Racial bias is “odious in all aspects,” but “especially pernicious in the administration of justice.” Buck v. Davis, 580 U. S. ___, ___ (2017) (slip op., at 22) (internal quotation marks omitted). When racial bias infects a jury in a capital case, it deprives a defendant of his right to an impartial tribunal in a life-or-death context, and it “‘poisons public confidence’ in the judicial process.” Ibid. The seating of a racially biased juror, therefore, can never be harmless. As with other forms of disqualifying bias, if even one racially biased juror is empaneled and the death penalty is imposed,“the State is disentitled to execute the sentence,” Morgan v. Illinois, 504 U. S. 719, 729 (1992).
In this case, petitioner Kristopher Love, a Black man,claims that one of the jurors in his capital trial was racially biased because the juror asserted during jury selection that “[n]on-white” races were statistically more violent than the white race. 29 Record 145. The Texas Court of Criminal Appeals never considered Love’s claim on the merits. Instead, relying on an inapposite state-law rule, the court concluded that any error was harmless because Love had been provided with two extra peremptory strikes earlier in the jury selection proceeding, which he had used before the juror at issue was questioned. That decision was plainly erroneous. An already-expended peremptory strike is no cure for the seating of an allegedly biased juror. The state court thus deprived Love of any meaningful review of his federal constitutional claim. I would summarily vacate the judgment below and remand for proper consideration.

RIP Ben Benjamin

 There's very little that I think of as positive about the FDC-Miami, but one bright spot was Officer Benjamin.  He was always professional and nice.  And he was a really cool dude.  He treated us defense lawyers and our clients with respect and as human beings.

Such sad news that he recently passed away.  

The obit:

“Ben” Benjamin Jr., 56, of Tamarac, FL transitioned to heaven unexpectedly on Wednesday, April 13, 2022. He was born on Tuesday, February 22, 1966 to Buell Sr. and Cassandra. He was employed by The United States Department of Justice, Federal Bureau of Prisons for over 23 years. He loved shooting, cooking, dancing and was known to many as a “Gentle Giant”. He enjoyed traveling to Colombia, spending time with his friends and family, and was an avid New York Yankee fanatic.

He is preceded in passing by his mother, father, and his brother; Andreas. He is survived by his loving wife; Maria del Pilar, brother; Clint, two sisters, his beloved aunt; Vergie Schou and numerous nieces and nephews.

A “Life Retirement Party” will be held on Thursday, April 21, 2022 with a closed casket from 6pm to 8pm. A “Life Retirement Service” will be officiated by Pastor Bernard King at 8pm. The family has requested that guests wear their favorite baseball attire, if they so choose.

Lastly, for those who are unable to attend the Life Retirement Service, please click the “watch video” button located below under Funeral Service at 8pm EST

In lieu of flowers, the family is requesting memorial gifts here.

DOJ's Antitrust division behaving amateurish (UPDATED)

It hasn't been a good couple of weeks for the DOJ's Antitrust Division. 

In Denver, they tried a 10 defendant case twice and both times it hung as to all defendants. Ouch!

Wearing those horse eye-blinders, DOJ announced it would retry the case a third time.  That didn't sit well with the judge, who summoned the head of the Division, Jonathan Kanter, to court to explain how a third trial would be in accordance with DOJ federal prosecution standards.  Bloomberg covered it here:

At the hearing Thursday, the judge repeatedly asked Kanter why he thinks the result of a third trial will be different. He also quizzed Kanter about a Justice Department policy requiring prosecutors to go forward with cases only if they believe the evidence will “probably” result in a conviction. But Brimmer said he doesn’t have the authority to require prosecutors to follow the standard.

The judge concluded the hearing by urging Kanter to “go back to Washington and think about that.”

Well then.  

In addition to those standards, there are, of course, basic standards of fairness and decency.  If you can't convict any of 10 defendants after a length trial, let alone two of them, it's time to call it quits.  Congress needs to fix this.  The government should get one shot to convict.  Then it's tie to move on to the next one.

But that's not the only Antitrust black eye.  It brought its first wage-fixing case in Texas against two defendants. Between the two of them, they were charged in 6 counts. The Division lost 5 of those counts, including the top counts.  It only got a conviction on a lesser false statement count against one of the defendants.  

So what does DOJ do?  It issued a press release with the heading: "Former Health Care Staffing Executive Convicted of Obstructing FTC Investigation into Wage-Fixing Allegations."  Are you kidding me?  The release starts this way:

Today, a Texas man was convicted of obstructing a Federal Trade Commission (FTC) investigation, following an eight-day trial in the Eastern District of Texas.

“Lying to federal agencies is a crime, plain and simple,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division. “And, as the court’s rulings in this case make clear, so is wage fixing. When obstruction affects the federal government’s investigations into labor market collusion and impedes our ability to protect workers, we will use all the tools available to prosecute all of these crimes to the full extent of the law.”

“Wage fixing causes tremendous harm to countless hardworking Americans,” said Assistant Director Luis Quesada of the FBI’s Criminal Investigative Division. “The FBI will continue to work closely with our law enforcement partners to uncover this type of corruption and bring to justice anyone who is responsible or who obstructs our investigations into this conduct.”

How embarrassing.  But it's also wrong. These guys were exonerated.  And it's not until the 6th paragraph of the release that you see what actually happened at the trial.  Thank goodness there was some honest reporting about it, including from Bloomberg, which had this headline: "DOJ’s First Criminal Wage-Fixing Case Ends Mostly in Defeat."  

Antitrust is now waiting for a verdict in the first "no-poach" criminal trial.  Let's see what happens there and how Antitrust handles it.  In the meantime, they should be rethinking their new "aggressive" tactics in criminal cases.

UPDATED Friday evening 7:40 -- The jury acquitted both defendants in the first no-poach trial -- Kent Thiry and DeVita.  It's going to be hard for the government to spin this one!