News & Notes

 1. Judge Milton Hirsch wrote this incredible order about the right to a 12-person jury in state court.  Worth a read.  From the conclusion:

Had this order been filed six weeks earlier, it would have ended here. I would have concluded that Florida v. Williams is no longer the law, and that Defendant is entitled to a jury of 12. In the interim, however, an appellate court of this state has concluded the contrary. Ramos v. Louisiana was decided two years ago. While the vaunted Miami criminal defense bar, public and private, temporized and dawdled, a lawyer in St. Lucie County, Florida, appears to have raised the issue at bar. In the ordinary course, the matter then wound its way to the Fourth District Court of Appeal which, less than six weeks ago, decided Guzman v. State, ___ So. 3d ___ (Fla. 4th DCA Oct. 26, 2022).In Guzman, the Fourth District found that the issue of a 12-person jury was likely not properly before it, Guzman, ___So. 3d at ___; but that if it was, the Supreme Court in Ramos “ha[d] not revisited its express holding in Williams,” Guzman at ___, and the Supreme Court “does not normally overturn . . . earlier authority sub silentio.” Id . (quoting Shalala v. Illinois Council on Long Term Care, 529 U.S. 1, 18 (2000)). Noting how terse is the Guzman majority’s discussion of this issue, Defendant asks me to pass over it as meredictum. It is terse. But it is notdictum.11By operation of Florida’s well-settled “ Pardo rule,” see Pardo v. State, 596 So. 2d 665,666 (Fla. 1992), I am, in the absence of a binding decision from the Third District, bound by a decision from the Fourth District. As a judge of a lower court, I must follow controlling appellate case law. But judges of lower courts “may state their reasons for advocating change” while they follow controlling appellate case law. Hoffman v. Jones, 280 So. 2d 431, 434 (Fla.1973). I have done so. See supra at 7-11; see also Guzman, ___ So. 3d at ___ (Gross, J., concurring) (“The Ramos majority . . . contains references to the common law requirement of a12-person jury and suggests that the Sixth Amendment affords a right to the essential elements of a trial by jury as understood and applied at common law”).We will be ignoring, not effectuating, the intent of the Supreme Court, not to say the intent of our Constitution’s Framers, by trying this defendant before a jury of fewer than 12 good men and women and true. We will be ignoring a constitutional right. But like every lower-court judge I must obey the decisions of higher courts, “agreeing with some, disagreeing with some, following all, because our bondage to the law is the price of our freedom.” Johnson v. Johnson, 284 So. 2d 231, 231 (Fla. 2d DCA 1973).Guzman has considered Ramos and found Williams still to be the law. I sincerely hope and confidently believe that the Third District will find otherwise. Until it does, however, Defendant’s motion for a 12-person jury must be respectfully denied.

2. USA Today did a nice piece about how prosecutors federal judges are messing up bail and detaining too many folks.  Check it out here. 

Congratulations to newly confirmed U.S. Attorney, Mark Lapointe

Fantastic news.

Mark is a great guy and will be a wonderful U.S. Attorney.

Lots of speculation and chatter in the bar about how he will shake up the office and what measures he will take to change the culture over there.  

The Herald covers the confirmation here:

Markenzy Lapointe was confirmed by the United States Senate Tuesday night as the U.S. attorney for South Florida, making him the first Haitian-American lawyer to serve in the region’s most powerful federal law enforcement position. Lapointe, a former U.S. Marine and ex-federal prosecutor who was raised in Haiti and Miami, was nominated in September by President Joe Biden to fill the position, which is responsible for directing about 250 prosecutors in a district extending from Key West to Fort Pierce. It is considered one of the busiest districts in the country because of the region’s steady stream of financial fraud, drug trafficking and internet crimes.

"And" Means "And" (Or does it mean or?) -- UPDATE

 By John R. Byrne

"And" means "and," it turns out. That's the holding of the Eleventh Circuit after en banc review in United States v. Garcon, Case No. 19-14650. Judge Pryor wrote the majority opinion, framing the question presented as such:

• The question presented in this appeal of a grant of safety valve relief is whether, in the First Step Act, the word “and” means “and.” The Act empowers a court to grant a criminal    defendant relief from a mandatory minimum sentence, but that relief is available only if “the defendant does not have” “more than 4 criminal history points,” “a prior 3-point offense[,] . . . and . . . a prior 2-point violent offense.” 18 U.S.C. § 3553(f )(1)             

The Court answered that question "yes," holding that a defendant has to check every box to lose eligibility. Because Garcon did not (he had a prior 3-point offense but did not have a prior 2-point violent offense or more than 4 criminal history points) he was eligible, as Judge Cohn had held at the district court level. 

The Court's reasoning for its ruling? "And" is "conjunctive." Seems straightforward, right? Not to dissenting Judges Jordan, Branch, Grant, and Brasher. All endorsed a disjunctive reading of "and." It's hard to do justice to the reasoning of both sides, so the opinion is worth a read, if anything to re-familiarize yourself with the various canons of statutory construction, which get a lot of attention (even the "absurdity canon")! Very interesting lineup of dissenters and this is Judge Pryor's second opinion for the en banc Court in favor of a criminal defendant (he penned the Corrine Brown opinion).

The practical takeaway? A lot more defendants will now be eligible for safety valve relief. Opinion below.

UPDATE by DOM: Thanks for the great post, John. I had to jump in and congratulate the Federal Defender's Office for this big win. It's not every day that you get an en banc ruling for a criminal defendant.  The case was handled by AFPDs Tracy Dreispul and Brenda Bryn.  Wonderful.

Opinion by John Byrne on Scribd

News & Notes

 1. Judge Graham declares a mistrial because of a late disclosure of discovery.  Law360 covers it:

On day 13 of the trial against Jason Todd Faley, Joseph Anthony Cavallo and Benjamin Clark Heath, Senior U.S. District Judge Donald L. Graham declared a mistrial, but refrained from dismissing the indictment with prejudice as the defense had requested.

The mistrial came after the government revealed a terabyte of data, including more than 400,000 emails, that was seized via a search warrant on GoDaddy.com in 2017 for the emails of cooperating defendant Mark Vollaro and others affiliated with Complete Healthcare Concierge, one of the companies through which the defendants allegedly ran a scheme to submit fraudulent prescriptions for compounded medications.

Prosecutors lost track of the documents after the seizure and did not discover the search warrant until just before trial, according to court documents. The data was shared with the court and the defense just after the jury was sworn in, court documents state.

2.  Michael Avanetti was sentenced to 14 consecutive years, making his sentence nearly 20 total years.  Too much? From CNN:

Dean Steward, an attorney for Avenatti, said in a statement to CNN that the sentence “was overly harsh and uncalled for,” adding that his client described it in court as being “off the charts.”

“When compared with similar high-profile cases, the unfairness is glaring,” Steward said.

Monday’s sentence represents the latest episode in an extraordinary years-long legal drama surrounding Avenatti, whose representation of Stormy Daniels, the adult film star who alleged she had an affair with former President Donald Trump years before he ran for office, made the pugnacious attorney a household name.

“Avenatti’s fraud was egregious, and the court plainly meant to send a strong message. But a 14-year sentence is extraordinarily long given all the circumstances,” said CNN senior legal analyst and former federal prosecutor Elie Honig. 

3.  Former Congressman David Rivera has been charged.  His case is assigned to Judge Gayles. From Politico:

Former Florida Rep. David Rivera, who had successfully outflanked a series of investigations during his lengthy political and consulting career, was arrested Monday by federal authorities in connection with an ongoing probe into his work with Venezuela’s authoritarian regime.

Rivera, who represented a Miami-area district from 2011 to 2013, was detained in Georgia on Wednesday in connection with a Miami grand jury indictment issued last month. His arrest was first reported by The Associated Press. According to the indictment unsealed on Monday night, Rivera and his former political consultant, Esther Nuhfer, are facing charges of conspiring against the U.S., failing to register as foreign agents and engaging in illegal financial transactions including money laundering.

“It was the purpose of the conspiracy for the defendants to unlawfully enrich themselves by engaging in political activities in the United States on behalf of the government of Venezuela, and by representing the interests of the government of Venezuela before officials of the of the United States government and in an effort to influence United States foreign policy,” states the 34-page indictment.

“This is the single most important case on American democracy — and for American democracy — in the nation’s history.”

 That's former judge Michael Luttig on Moore v. Harper, which will be heard by the Supreme Court this Wednesday.  The question presented is:

Whether a state’s judicial branch may nullify the regulations governing the “Manner of holding Elections for Senators and Representatives ... prescribed ... by the Legislature thereof,” and replace them with regulations of the state courts’ own devising, based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a “fair” or “free” election.

The AP covers the case here: 

The Supreme Court is about to confront a new elections case, a Republican-led challenge asking the justices for a novel ruling that could significantly increase the power of state lawmakers over elections for Congress and the presidency.

The court is set to hear arguments Wednesday in a case from North Carolina, where Republican efforts to draw congressional districts heavily in their favor were blocked by a Democratic majority on the state Supreme Court because the GOP map violated the state constitution.

A court-drawn map produced seven seats for each party in last month’s midterm elections in highly competitive North Carolina.

The question for the justices is whether the U.S. Constitution’s provision giving state legislatures the power to make the rules about the “times, places and manner” of congressional elections cuts state courts out of the process.

***

Luttig, who advised former Vice President Mike Pence that he had no authority to reject electoral votes following the 2020 election, is among several prominent conservatives and Republicans who have lined up against the broad assertion that legislatures can’t be challenged in state courts when they make decisions about federal elections, including congressional redistricting.

That group includes former California Gov. Arnold Schwarzenegger, law professor Steven Calabresi, a founder of the conservative Federalist Society and Benjamin Ginsberg, a longtime lawyer for Republican candidates and the party.

“Unfortunately, because of ongoing and widespread efforts to sow distrust and spread disinformation, confidence in our elections is at a low ebb,” Ginsberg wrote in a Supreme Court filing. “The version of the independent state legislature theory advanced by Petitioners in this case threatens to make a bad situation much worse, exacerbating the current moment of political polarization and further undermining confidence in our elections.” 

That's just one blockbuster being heard this week.  Up Monday is the web-designer case, a follow up to the cake designer case.  From SCOTUSblog:

The Supreme Court on Monday will revisit a long-simmering tension between legal protections for LGBTQ people and the rights of business owners who oppose same-sex marriage. The case, 303 Creative v. Elenis, is a challenge by a Colorado website designer to a state law that bars businesses that are open to the public from discriminating against gay people or announcing their intent to do so. The designer, Lorie Smith, argues that subjecting her to the law would violate her right to free speech. Colorado counters that exempting Smith from the law would open a Pandora’s box that would “upend antidiscrimination law – and other laws too.”

The justices have already grappled with this question once. In 2018, the court handed a narrow victory to Jack Phillips, a Colorado baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. Justice Anthony Kennedy’s opinion rested largely on the majority’s conclusion that the Colorado administrative agency that ruled against Phillips treated him unfairly by being too hostile to his sincere religious beliefs. The opinion seemed to leave open the possibility that, in a future case, a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, and the majority did not rule on one of the central arguments in the case – whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.

Enter Lorie Smith, the owner of 303 Creative LLC, a designer of websites and graphics based in Littleton, Colorado. Smith is a devout Christian who believes that marriage “is only between one man and one woman.” So although Smith wants to expand her business to include wedding websites, she does not want to design websites for same-sex weddings, and she wants to post a message on her own website to make that clear.

In 2016, Smith went to federal court in Colorado, seeking a ruling that Colorado could not enforce its public-accommodations law, known as the Colorado Anti-Discrimination Act, against her because it would violate her First Amendment rights to free speech and free exercise of religion. When the U.S. Court of Appeals for the 10th Circuit rejected her arguments, Smith came to the Supreme Court. The justices agreed in February to take up her case – but only on the free speech question, not on the free exercise issue.

 

 

CA11 says no to Cannon's Special Master in Mar-a-Lago case

 That was fast... and furious.  The 11th Circuit quickly vacated Judge Cannon's order appointing a Special Master in the Trump/Mar-a-Lago search case.  The per curiam opinion (CJ Pryor, Grant, Brasher) didn't hold back: 

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required.

The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.

Judge Branch speaks about cancel culture at Yale

 She joined Judge Ho and spoke at Yale.  Per Reuters:

Branch, a member of the Atlanta-based 11th U.S. Circuit Court of Appeals who is the only judge to publicly join Ho's boycott, said that while universities have been hesitant to punish disruptive students, "fatigue is growing for disruptive protests."

Asked by attendees what it would take for them to end their planned boycott of Yale students, both judges held out the possibility they could abandon it before it takes effect beginning with the class of 2023.

Ho said he understood that Yale appeared to recognize that they "clearly need a massive course correction."

Yale Law School dean Heather Gerken in a letter to alumni on Oct. 12 outlined moves the school has made to "reaffirm our enduring commitment to the free and unfettered exchange of ideas." And she has invited Ho and Branch to speak at another event next year.

"We're watching," Branch said. "We have not only seen some positive developments on campus and campuses, but we've gotten a lot of feedback since we have been here. And I know I'm encouraged by some of the changes that I see that are occurring."

Third Circuit: Loss means actual loss, not intended loss

This is a biggie from the Third Circuit.

In U.S. v. Banks, the court held loss, for sentencing guidelines purposes, means actual, and not intended, loss:

The Guideline does not mention “actual” versus “intended”
loss; that distinction appears only in the commentary. That
absence alone indicates that the Guideline does not include
intended loss.49
The government concedes that “the presumption is that
a word carries its ordinary meaning (and thus may resolve its
ambiguity).”50 We agree. The ordinary meaning of “loss” in
the context of § 2B1.1 is “actual loss.” This result is confirmed
by dictionary definitions of “loss.”51 

***

Our review of common dictionary definitions of “loss” point
to an ordinary meaning of “actual loss.” None of these
definitions suggest an ordinary understanding that “loss”

means “intended loss.” To be sure, in context, “loss” could
mean pecuniary or non-pecuniary loss and could mean actual
or intended loss.55 We need not decide, however, whether one
clear meaning of the word “loss” emerges broadly, covering
every application of the word. Rather, we must decide
whether, in the context of a sentence enhancement for basic
economic offenses, the ordinary meaning of the word “loss” is
the loss the victim actually suffered.56 We conclude it is.
Because the commentary expands the definition of
“loss” by explaining that generally “loss is the greater of actual
loss or intended loss,”57 we accord the commentary no weight.
Banks is thus entitled to be resentenced without the 12-point
intended-loss enhancement in § 2B1.1.58