Big Tech and Guns

 

By John R. Byrne

A couple of big decisions issued by the Eleventh Circuit yesterday, both authored by Judge Newson.

In Netchoice, LLC et al. v. Attorney General, State of Florida, et al., the Court handed a victory to "Big Tech," holding Twitter, Facebook, and other companies were entitled to a preliminary injunction against a Florida law that would have barred them from, among other things, "deplatforming" political candidates. The Court found it "substantially likely" that social media companies are "private actors" (and, thus, have First Amendment rights) and that many (but not all) of the law's provisions violate those rights. Read it here.

In  United States v. Ignacio Jimenez-Shilon, the Court held that a law making it illegal for illegal aliens to possess firearms does not run afoul of the Second Amendment. Judge Newsom's opinion digs into Justice Scalia's opinion in District of Columbia v. Heller, 554 U.S. 570 (2008) offers a detailed account of the history of gun rights/laws in this country. Weirdly enough, Judge Newsom also wrote a concurrence to his own opinion, laying out what he considers the right analytical framework to apply to challenges to the Second Amendment. Read it here.

Judge Newsom's Jimenez-Shilon opinion is already drawing some fire on Twitter, tying the two opinions together.

Judge Scola to take senior status in October 2023

Judge Scola is the best. I’m truly happy for him but sad for all of us. He was always fair, smart, and thoughtful. The perfect judge. 

At least we keep him till October 2023. Let’s see if the White House can get its act together and get some judges confirmed  

Sentencings

I've often written about how our criminal justice system coerces pleas.  One of the reasons is the trial tax.  If you go to trial and lose, your sentence is likely to be many many times the plea offer -- sometimes more than a decade longer.  It's unjust.

Because there were almost no trials during the pandemic, and many judges were more compassionate during that time (it’s all relative), it was easy to forget about the awful trial tax in our system.

But recent sentences in our District and others are showing that there is absolutely no let up for the trial tax -- even for non-violent offenders. Most judges, who have never represented a criminal defendant, have no sense what a 5 *year* sentence does to a person, a family, a community. It’s completely devastating. 

One possible solution -- at a sentencing post-trial, judges should be told what the plea offer was.  If a plea offer was X, the government shouldn't be asking for 4X. 

Since COVID, prosecutors have also candidly told me that they are now asking for much higher than they believe is appropriate at all sentencings because they believe that most judges will vary down from their recommendation.  The typical scenario is that a prosecutor believes that a sentence of 10 years is warranted.  The defense believes 3 years is right.  The prosecutor knows that if both sides ask for those sentences, a judge is likely to give 5-6 years, so the prosecutor asks for 12 or 15 years in the hopes of getting 10.  Judges then feel like they didn't give the prosecutor everything they asked for, when they actually did just that.  

Anyway, that's my Sunday morning rant.  Sentences are on the uptick again post-COVID.  Incarceration rates are moving higher again.  While COVID remains, the compassion during the pandemic seems to be fleeting.  

"Is the Justice Department Incompetent?"

 That's the title of this extensive article by New York Magazine.  Here's how it starts out:

“I’m here to declare that we are not part of the chickenshit club.”

That announcement came last month courtesy of Jonathan Kanter, the head of the Justice Department’s antitrust division and one of the stewards of the Biden administration’s ambitious, all-purpose antitrust-enforcement agenda. Kanter was speaking at the University of Chicago and was, improbably, in good spirits following a series of high-profile losses for prosecutors in his office. There had been acquittals in separate, closely watched criminal cases in Colorado and Texas, both involving alleged collusion in labor markets, as well as a second mistrial in a much-touted criminal price-fixing case involving executives in, appropriately, the chicken industry. After the department decided to try the chicken case a third time, the presiding judge ordered Kanter, whose job leading the antitrust division’s 700 employees is the first he has ever held at the department, to fly to Denver and explain the decision to him in person.

Kanter’s invocation of “the chickenshit club” was an apparent statement of purpose for a newly emboldened DOJ. The term became popular after the publication of a 2017 book of the same name by Jesse Eisinger, which held, in its simplest form, that government prosecutors failed to pursue big, white-collar criminal cases in the wake of the financial crisis because they were scared of losing.

Kanter argued that the department’s antitrust lawyers would not be deterred by the losses (which he tried, unconvincingly, to portray as partial victories). But a casual follower of the Justice Department’s performance in recent months might have detected a larger trend extending beyond Kanter’s purview overseeing the department’s civil and criminal antitrust cases.

Early this year, an appeals court reversed the convictions of two former Deutsche Bank employees who had allegedly manipulated a financial benchmark rate known as LIBOR. In March, a jury in Texas acquitted the one and only person charged in connection with the department’s investigation of Boeing following two crashes of its 737 Max jets after deliberating for just 90 minutes. A jury in Washington, D.C., acquitted two defendants who had been charged in a campaign straw-donor scheme. (As I have noted before, I used to work in the office that brought the Boeing prosecution and know some of the prosecutors, but I was not involved in the investigation. Before my time at DOJ, I worked on the internal investigation for Deutsche Bank that resulted in the LIBOR prosecution.)

Then last month, prosecutors lost the trial over the alleged plot to kidnap Michigan governor Gretchen Whitmer after a jury acquitted two of the four defendants and hung on the charges against the others. Strictly speaking, this was not a white-collar case (unless you count the fact that so many of the alleged plotters were apparently working for the FBI), but it had some rough similarities — not just a major, highly publicized case that the department tried hard to win but also one in which deterrence was a major objective.

There have been victories, too — most notably the case against Elizabeth Holmes, who was indicted in mid-2018 and convicted following a trial last year after pandemic-related delays. More recent was the conviction in Brooklyn of a former Goldman Sachs employee who participated in a massive bribery and kickback scheme connected to a Malaysian sovereign wealth fund. Outside of the white-collar realm, the department has also been exceedingly busy with the January 6 prosecutions, and whatever concerns some of us may have about the scope and pace of that investigation, prosecutors’ performance in the courtroom has been impressive.

But the slew of recent setbacks has been hard to ignore, particularly in the middle of the department’s effort to tout its white-collar enforcement record and agenda. At this moment, well into the tenure of Merrick Garland, the notion that the department’s major problem is a failure of resolve seems less compelling in recent memory than ever, prompting some legitimate questions. Among them is whether Garland’s vision for the department and his understanding of its difficulties during the Trump years is as comprehensive as it needs to be.

Changes

By Michael Caruso

The federal judiciary has recognized that diversity and inclusion are essential values in our legal system. "Diversity on the bench and among our courtroom and chambers staff is critical to serving a diverse population," said Judge Raymond A. Jackson of the Eastern District of Virginia. "It's important that the court is reflective of the community it serves." This is particularly true of those chosen to clerk on the United States Supreme Court.

Judge (soon to be Justice) Ketanji Brown Jackson has put these words into action. Judge Jackson recently hired Kerrel Murray, an associate professor at Columbia Law School, Natalie Salmanowitz, a law clerk at Hogan Lovells, and Michael Qian, an associate at Morrison & Foerster.

Judge Jackson's other hire is Claire Madill. Ms. Madill practices locally—at the Palm Beach County Public Defender's Office! I don't know the exact number of Supreme Court clerks who have been hired  from a public defender's office, but the number has to be exceedingly small. 

In addition to being a public defender, Ms. Madill also is a co-founder of Law Clerks for Workplace Accountability. This group advocates for stronger anti-harassment measures across the federal judiciary. Ms. Madill's hire and work with this group are timely, given the report this week about a disturbing workplace study conducted for the federal trial and appeals courts in D.C.

As the saying goes, "personnel is policy." Choosing a young public defender—one who has a proven commitment to the public interest—is an excellent policy. Praise to Judge Jackson, and congratulations to Ms. Madill!

 

Congrats to Clerk Noble

 

Great to get together again for the @federalbar PBC Ch Ryskamp Award lunch. Congrats to this year’s honoree, Angela Noble, Clerk of Court for the SD of Fl, who gave a memorable acceptance speech that got a standing ovation.@TheFlaBar @uscourts #barevents#federalpractice pic.twitter.com/Wbjl57bMrZ

— Herman Law, P.A. (@WhiteCollar_Law) May 17, 2022

RIP Jack Blumenfeld (UPDATED)

Papa Jack was a great guy and wonderful lawyer.

Rumpole has a nice post about him here.

UPDATE-- From the Blumenfeld family:

On Sunday, May 15, 2022, Jack R. Blumenfeld, loving husband, brother, father and grandfather, passed away at age 79 surrounded by his loved ones.
His funeral will take place on Wednesday, May 18 at 9:30am at Temple Judea,
5500 Granada Blvd, Coral Gables, FL. The service will be live streamed here
for those who can't make it: https://bit.ly/3lnfi1L
We ask that you give the family time to grieve during this difficult time.
We will be monitoring Jack's Facebook messages if you have any questions.

UPDATE 2-- From the comments by Michael Caruso:

This is very sad news. As David wrote, Jack was a kind and caring man in addition to being an excellent lawyer.

I first met Jack when I was a young-ish lawyer. I received a call from Judge Gold to represent a potential defense witness that Jack wanted to call.

Jack's client—Jose Miguel Battle, Sr., was on trial for being a felon in possession of a firearm. Apparently, Battle caught my client on his property, picking maymey. After a brief dust-up, they became friends. Because they were friends, Battle let my client hunt on his large property. After one such hunting adventure, my client left his shotgun at Battle's house. Of course, this shotgun formed the basis for the indictment. Despite my client's testimony, the jury convicted.

I'm grateful I had this experience. Spending this brief time with Jack and watching him in trial was a highlight of my early career. And I can't remember a subsequent encounter with Jack that didn't leave me with a smile on my face. He'll be missed.

Finally, for those old enough to forget or too young to remember—Battle led quite a notorious life—from the Bay of Pigs to being described as the "Cuban Godfather" here in the U.S. Here are some links to stories about his life. Jack's quoted prominently.

https://www.sun-sentinel.com/news/fl-xpm-2007-08-07-0708060320-story.html

https://www.thedailybeast.com/the-cuban-gangster-who-mysteriously-refused-to-die

https://www.miaminewtimes.com/news/jose-miguel-battle-jr-head-of-cuban-mafia-ring-la-corporacion-released-from-prison-9830697

FACDL Banquet

It was the big FACDL-Miami shindig this weekend. 

It was a lot of fun and a wonderful group of award winners, including Judge Raag Singhal (The Gerald Kogan Award), Michael Caruso (President's Award), Elliot Scherker (Daniel-Pearson-Harry Prebish Award), and Frank Quintero (Against All Odds Award). 

Outgoing President Kevin Hellman gave very uplifting remarks and we welcomed Michael Davis as the new President, who was sworn in by Judge Kevin Emas. Margot Moss presented the Gideon's Hope Scholarship and Judge Milton Hirsch swore in the new officers. 

Brad Horenstein did a wonderful job officiating the entire event. Below are some pictures from the event.