The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
This is a big one. Vote was 6-3. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Justice Alito's opinion. Justice Roberts did not join the opinion but agreed with the result. He filed a separate opinion.
Scotus blogger Amy Howe discusses the likely effects of the ruling here.
That's the title of an interesting article by Florida Bulldog. The intro by Dan Christensen:
Miami FBI Special Agent in Charge George Piro is retiring, after sources say he was shown the door by FBI headquarters in Washington following a complaint by a subordinate that Piro improperly transferred his office’s bid-rigging investigation of Broward Sheriff Gregory Tony to South Carolina.
Piro’s last day in the office is said to be today, June 17, but he will officially depart June 30. The 23-year FBI veteran was named special agent in charge in November 2018. He also served as head of the Miami office from 2014-2017. In between, he was assistant director of the International Operations Division at FBI headquarters.
Phone and email messages seeking comment from Piro and FBI spokesman Mike Leverock over two days were not returned. The FBI national press office did not respond to an emailed request for comment before publication.
One source said that at a meeting with his agents last year, Piro explained transferring the Tony investigation by making two points: that he was not going to be responsible for the arrest of Broward’s first black sheriff, and that such an arrest would ruin the FBI’s relationship with the sheriff’s office, with which it frequently works.
Piro, who interrogated Iraqi dictator Saddam Hussein, also mentioned in the meeting that Sheriff Tony was responsible for sending $50,000 each to the families of two FBI agents who were killed while serving a search warrant at a Sunrise apartment on Feb. 2, 2021, the source said.
On Tuesday morning, the 11th Circuit will hear three cases en banc. Two criminal cases and one false claims case.
Notably, the panel ruled for the government in each of the three cases.
I get on the 11th Circuit a lot, and one of my complaints is that the court almost never grants en banc review when the government prevails. So this is nice to see.
I didn't find any of the panel decisions earth shattering, but here they are in case you are interested:
The Varsity Blues prosecutions is a pretty good representative sample of how our criminal justice system operates.
57 defendants were indicted.
54 pleaded guilty (95%).
3 went to trial (5%).
1 was acquitted (1.75%).
Those numbers very closely track the national averages on federal cases, where about 97% of defendants plead guilty.
You'll be shocked to learn that the two defendants who went to trial and lost received the longest sentences in the case.
Some of the defendants with the best chances of acquittal pleaded guilty and either received no jail time or a few weeks of jail. There is no question that if some of those defendants had gone to trial, some of them would have been acquitted. But they saw the risks as too great.
The federal prosecutors who brought these cases are out there saying that winning 56 of 57 cases shows that the cases were righteous.
But let's assume that 20% of cases went to trial and that more than a third of those were acquitted (to track the numbers that existed in this country pre-sentencing guidelines). Would the government still be patting itself on the back?
The two defendants who lost at trial are appealing their sentences. The appellate court will be faced with the question of whether cheating to get into college should be a federal crime. It's an important question; however, it will be much tougher for the appellate court to reverse where almost everyone has pleaded guilty (for fear of the trial tax).
Had more defendants challenged their cases and had done so earlier, perhaps the whole investigation would have been shut down as some would certainly have won at trial and perhaps those that lost would have won on appeal.
Our criminal justice system was built on trials. On forcing the government to actually prove beyond a reasonable doubt a righteous case. Not on coercing folks to plead guilty.
Yes for the 3-0-5! The only acquittal from the Varsity Blues case... this is why more cases need to go to trial. Almost every single one of the VB cases pleaded out. People were too afraid of the trial tax. But there's no tax for an acquittal! Congrats to Roy, Howard, Maria, and Jackie.
A Boston federal jury on Wednesday acquitted a Massachusetts businessman on charges he bribed his daughter's way into Georgetown University through illicit payments to the elite school's tennis coach, upending the government's clean record of convictions in the "Varsity Blues" investigation.
Amin Khoury was found not guilty of participating in a mail fraud conspiracy and bribery scheme for paying $180,000 to former Georgetown coach Gordon Ernst through a middleman, who also received $20,000. Prosecutors said that in exchange, Ernst marked Khoury's daughter, Katherine Khoury, as a recruit to the elite Division I school.
Khoury embraced his legal team after the jury and judge left the room.
The weeklong trial featured evidence that Khoury attended a Memorial Day weekend reunion at Brown University, resulting in an agreement that he would pay Ernst for the recruiting slot.
The alleged middleman in the scheme, Tim Donovan, testified that he met up on Cape Cod with Khoury, who gave him a paper bag filled with $180,000 in crisp bills.
Khoury's defense attorney, Roy Black of Black Srebnick PA, hammered Donovan, who testified under an immunity deal with prosecutors, suggesting he was only saying what the government wanted him to say in order to dodge liability for allegedly not paying taxes on cash fees he took for helping high school tennis players get recruited into colleges.
"It's made up by Tim Donovan as part of his scheme to get immunity," Black said during closing arguments. "Katherine Khoury got into school on her own with the help of her father's best friend from Brown as it was disclosed to the school."
Assistant U.S. Attorney Kristen Kearney, at closing, leaned into the image — offered by Donovan — of the paper shopping bag filled with $180,000 in cash that Khoury allegedly slid across a table to him.
"Brown paper shopping bag of cash," she told the jury Tuesday. "It's not some imaginary evidence the defense is asking you to conjure. It's the actual evidence in front of you. This case is not complicated. The defense had thrown a lot at you to distract you from the simple fact they cannot dispute."
That's the title of this Above The Law article, which details how an appellate court reversed a sentencing court for tacking on 6 years to a sentence because the defendant wasn't happy with the initial sentence.
In 2019, Manson Bryant was sentenced on robbery, kidnapping, and weapons charges. Bryant spoke on his own behalf at a sentencing pleading with Lake County, Ohio Common Pleas Court Judge Eugene Lucci, saying, “I don’t want to die in prison, sir. I’m not a bad person, sir. I do have a drug problem. I’ve been in front of you multiple times. I respect you. And I respect your decision that you make today.”
Lucci sentenced Bryant to 22 years in jail — significantly more than the 12 years Bryant’s co-defendant received.
And, according to court transcripts, that’s when things went off the rails.
BRYANT: Fuck your courtroom, you racist ass bitch. Fuck your courtroom, man. You racist as fuck. You racist as fuck. Twenty-two fucking years. Racist ass bitch. (CONTINUED OUTBURST BY DEFENDANT, SWEARING, YELLING, MUCH UNINTELLIGIBLE).
COURT: Remember when—
BRYANT: You ain’t shit.
COURT: Remember when I said that you had some remorse?
BRYANT: You ain’t shit. You never gave me probation.
COURT: Wait a minute.
BRYANT: You never gave me a chance.
COURT: When I said that you had a certain amount of remorse, I was mistaken. (DEFENDANT CONTINUES YELLING). The Court determines—
BRYANT: Fuck you.
COURT: The Court determines that maximum imprisonment is needed, so it’s eleven years on Count 1 and eleven years on Count 3.
BRYANT: Fuck that courtroom. You racist bitch. You ain’t shit. (MALE VOICE SAYING “MANSON” REPEATEDLY). Let me out the courtroom, man. (MORE SHOUTING AND SWEARING).
COURT: So, it’s twenty-eight years with credit for two hundred and thirty-one days. Hold on. (DEFENDANT STILL SHOUTING). Does counsel waive your client’s presence for the remainder of the advisements I have to give?
DEFENSE COUNSEL: Yes, Your Honor.
COURT: Alright. You can take him. The Court determines that [Bryant] has shown no remorse whatsoever. I was giving him remorse, a certain amount of remorse in mitigation of the sentence. [Bryant] has shown me that he has no remorse whatsoever, and therefore the Court determines that maximum imprisonment is needed.
But the Ohio Supreme Court held that Lucci’s addition of the six years — on top of the previously imposed 22 years — was improper.
“Bryant’s angry, profanity-laced tirade was, in no uncertain terms, disrespectful to the court,” the decision said. “Not only did Bryant accuse the trial-court judge of being a racist, but he did so using derogatory terms and in open court. As impertinent as this tirade was, however, we agree with Bryant that it is clear from the timing and content of what was said that his outburst was in reaction to the length of his prison sentence. Nothing more.”
That's the start of this must-read article by CATO's Clark Neily. It starts like this:
“More weight!” Those are the famous—though perhaps apocryphal—last words of octogenarian farmer Giles Corey, who in 1692 was accused of being a witch and then pressed to death by the Commonwealth of Massachusetts when he refused to enter a plea to the charge. You might think we’d have made great progress in the ensuing 330 years when it comes to the government’s use of coercion against recalcitrant defendants, but you’d be wrong. Pressure is still the mainspring of American criminal justice—we just don’t use rocks and gravity to produce it anymore. Instead, we’ve refined our approach to make the application of pressure less bloody but still equally effective.
In this piece, I will explain how the confluence of an ancient Greek paradox and a famous common‐law maxim ravaged the Bill of Rights and destroyed the moral legitimacy of our criminal justice system in a way that should have self‐professed constitutional originalists reaching for the proverbial muskets above their mantelpieces. (Spoiler alert: They aren’t.)
But first, let’s get back to the unfortunate Giles Corey. Swept up in the hysteria of the Salem witch trials, Corey was accused of being a “dreadful wizard” who “grievously tormented” various neighbors while appearing to them as an apparition. Arrested and brought before a judge, Corey steadfastly refused to enter a plea of guilty or innocent, which both deprived the court of lawful jurisdiction to try the case and—this part is key from the government’s perspective—the ability to dispossess Corey’s heirs following his virtually inevitable conviction and execution. What to do?
It turns out Corey wasn’t the first person to pull this stunt, and the judiciary had a special procedure for defendants who stubbornly refused to submit themselves (and their estates) to the jurisdiction of the court. It was called peine forte et dure (roughly, “pain, good and hard,”), and it involved placing the defendant under a wooden plank and piling on rocks until they relented. Simple, brutal, and effective; but—disconcertingly from the government’s perspective—not infallible. Thus, Giles Corey expired without ever entering a plea and is said to have taunted his tormentors at the end by calling for “more rocks.” As for his heirs, they got his estate—not the Commonwealth.
So what does this have to do with our modern criminal justice system? In a word, everything. Because when it comes to dealing with obdurate defendants, we use the same basic approach that was inflicted on Giles Corey, namely, the incremental addition of pressure to elicit a desired plea. And that’s where the ancient Greek paradox and the common law maxim mentioned above enter the story. We’ll take them in reverse order.
...Michael Caruso, the Federal Defender in our District.
Congrats to Michael, who is very well-deserving. And I don't just say that because he's a frequent guest blogger.
In another news, it's been a quiet Term at the Supreme Court for criminal cases. The Court took more life out of the double jeopardy clause yesterday in Denezpi v. United States, which starts this way (per Barrett):
The Double Jeopardy Clause protects a person from being prosecuted twice “for the same offence.” An offense defined by one sovereign is necessarily different from an offense defined by another, even when the offenses have identical elements. Thus, a person can be successively prosecuted for the two offenses without offending the Clause.
We have dubbed this the “dual-sovereignty” doctrine. This case presents a twist on the usual dual-sovereignty scenario. The mine run of these cases involves two sovereigns, each enforcing its own law. This case, by contrast, arguably involves a single sovereign (the United States) that enforced its own law (the Major Crimes Act) after having separately enforced the law of another sovereign (the Code of the Ute Mountain Ute Tribe).
Petitioner contends that the second prosecution violated the Double Jeopardy Clause because the dual-sovereignty doctrine requires that the offenses be both enacted and enforced by separate sovereigns. We disagree. By its terms, the Clause prohibits separate prosecutions for the same offense; it does not bar successive prosecutions by the same sovereign. So even assuming that petitioner’s first prosecutor exercised federal rather than tribal power, the second prosecution did not violate the Constitution’s guarantee against double jeopardy.
This is why we need more criminal justice warriors like Michael... without them, the system would simply fall apart.
