Get off my lawn....

By John R. Byrne

If you live in the Village of Pinecrest--or any other municipality in Miami-Dade--you may want to read Judge Altman's recent order in Megladon, Inc. v. Village of Pinecrest and Miami-Dade County. Looks like Pinecrest was strong-arming new owners into effectively gifting the Village (or "dedicating," to use Pinecrest's term) 7 1/2 feet of their property. The leverage used was Pinecrest conditioning the approval of a certificate of occupancy on the "dedication." Instead of giving in, Megladon challenged the condition as violating the Florida Constitution's Takings Clause. Pinecrest threw out a host of defenses, the main one being that it had not taken anything yet because Megladon never gave in. Judge Altman rejected the argument, noting that the "whole point of the unconstitutional-conditions doctrine" was to prevent the government from "pressuring" a person into giving up a constitutional right. Worth a read, particularly if you want to keep your local friendly municipality off your lawn!

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DOJ meets with FPD Michael Caruso and local bar re "Gideon Tour"

 It was the big ABA White Collar shindig this week in Miami.  1200 white collar prosecutors, defense lawyers, and federal judges descended upon the Hyatt and mingled all week.  DAG Lisa Monaco was also here.  In addition to giving a speech at the conference, she sat down with Michael Caruso, Henry Bell, Margot Moss, and others as part of DOJ's "Gideon Tour."  The Miami Herald has more:

Caruso, who oversees 50 assistant public defenders in the Southern District of Florida, described how the landmark Gideon decision and then passage of the Criminal Justice Act paved the way for indigent people to be represented by federally funded private attorneys and eventually public defenders in the 1960s. But at the meeting, Caruso highlighted shortcomings in the system, zeroing in on a defendant’s lack of access to a lawyer immediately after his arrest and placement in the Federal Detention Center. “In our district, an accused may not have a lawyer at various critical stages — like the initial appearance and bail hearing [in court],” Caruso said. “Those in prison — many of whom are seriously ill or who have a loved one who requires care-taking — may not have a lawyer to seek a compassionate release.

Federal Gideon "Explained"

By Michael Caruso

Because David’s readers are the most informed in the district, you know that this year marks the 60th anniversary of the Supreme Court’s decision in Gideon v. Wainwright. “Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime,” the Court found, and “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

But people accused in federal court obtained the right to counsel twenty-five years earlier in Johnson v. Zerbst, and Gideon was a decision about incorporating the right and applying it to the states. Notwithstanding, Gideon profoundly affected the federal system. Before 1964 and the passage of the Criminal Justice Act (CJA), appointed attorneys were not paid to represent indigent federal defendants. Nor was there any funding for case-related expenses, much less investigators or experts. Gideon, along with the highly influential report of Professor Francis Allen (years later my 1st year Crim Law professor) to then-Attorney General Robert F. Kennedy (the Allen Report), was a significant reason for passage of the CJA and the creation of a funded federal defense system.

The Report’s words still ring true: 

When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law but which, nevertheless, may occasionally affect determinations of the accused’s liability or penalty. While government may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice. The essence of the adversary system is challenge. Survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. The proper performance of the defense function is thus as vital to the health of the system as the performance of the prosecuting and adjudicatory functions. It follows that insofar as the financial status of the accused impedes vigorous and proper challenges, it constitutes a threat to the viability of the adversary system. We believe that the system is imperiled by the large numbers of accused persons unable to employ counsel or to meet even modest bail requirements and by the large, but indeterminate, numbers of persons, able to pay some part of the costs of defense, but unable to finance a full and proper defense. 

The Allen Report proposed legislation that became the template for the landmark (CJA). The Report was submitted to Attorney General Kennedy on February 25, 1963, three weeks before the Supreme Court decided Gideon.

The CJA was not fully completed, however, until 1970. The original statute did not create federal public defender offices but relied solely on assigned private attorneys paid by the hour. The Department of Justice and the Judicial Conference convened another study in 1967, and the subsequent findings contained in the Oaks Report recommended Congress amend the CJA to include public defender offices. The bill passed, and aside from occasional minor amendments, the current structure of federal public defense has remained the same ever since. 

SDFLA Black History Month Event

 

By John R. Byrne:

Last Friday, the Court held its annual Black History Month event. Kozyak Tropin partner Detra Shaw-Wilder moderated a panel comprised of Judge Graham, Marilyn Holifield, and Markenzy Lapointe that discussed the advancement of Black lawyers in South Florida. The ceremonial courtroom was packed and, though the conversation was serious for the most part, there were some laughs to be had (as illustrated by the photo!).  

A good portion of the event served as a tribute to the late Judge Cooke, who was the first Black female federal judge in the State of Florida (2004, if you can believe that). Judges Altonaga, Gayles, Graham, and Williams—along with Enjoliqué Aytch Lett, a former law clerk—gave heartfelt speeches about her. She was loved by many and her absence will be felt at the Wilkie D. and beyond. 

BONUS EPISODE: FOR THE DEFENSE -- DOUGLAS BROOKS FOR HARVARD FENCING COACH PETER BRAND

It's been too long!  I apologize for the slow pace of the podcast, but 2022 was an insane year for me with 4 federal trials, all in different districts. 

Before the next wave of trials begin, I was able to sit down with my good friend Douglas Brooks (we went to college and law school together).  Doug is a wonderful criminal defense lawyer in Boston. He represented Peter Brand, the Harvard Fencing Coach, who was indicted as part of the sprawling Varsity Blues investigation (because this case did not involve the snitch, Rick Singer, technically the U.S. Attorney's office did not include it as one of the Varsity Blues indictments). 

 

Although many questioned whether the Varsity Blues prosecutions should have even been brought, almost all of the 50+ defendants pleaded guilty.  Only a few had the guts to go to trial. So there was a lot of pressure on the U.S. Attorney's office to beat Doug in this case and show that the folks who decided to plead guilty made the right choice. The prosecution was so confident that it packed the courtroom with AUSAs to listen to the verdict. Not so fast...  

 

Have a listen on Apple Podcasts here (it's also available on your desktop and on all other podcast platforms, here) to Doug explain the trial tactics he used to win an acquittal (to the dismay of the scores of prosecutors who had to slink out of the courtroom).  

One other note -- Season 5 is already in production.  And we have some great guests lined up: Barry Scheck, Milton Hirsch, Lisa Wayne, and more.  We are shooting to launch Season 5 at the end of the summer.  

Thanks again for listening.

--David

 

Hosted by David Oscar Markus and produced by rakontur
 

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DOJ takes absurd position in front of Sentencing Commission

 I wonder how young line prosecutors feel about the policy decisions that DOJ is taking, including this latest one -- that sentencing judges should be able to consider acquitted conduct at sentencing.  Embarrassing.  From Reuters:

The U.S. Department of Justice is opposing a bipartisan panel's proposal to curtail federal judges' ability to impose longer prison sentences on criminal defendants based on conduct for which they were acquitted at trial.

Jessica Aber, the U.S. attorney for the Eastern District of Virginia, told the U.S. Sentencing Commission during a Friday hearing that its proposal to amend federal sentencing guidelines would go too far in limiting what conduct judges could consider.

***

The panel faces a May 1 deadline to submit amendments to the guidelines to Congress.

Several cases are pending before the U.S. Supreme Court to bring an end to the practice on grounds it did not consider in 1997, when it held that taking acquitted conduct into account at sentencing does not violate the double jeopardy clause of the U.S. Constitution's Fifth Amendment.

Judges may do so because while juries must consider whether a criminal charge is proven beyond a reasonable doubt, judges at sentencing may consider whether facts are proven based on a preponderance of the evidence, a lower standard of proof.

 

"Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense."

That's the issue on tap Monday morning in the Supreme Court.  The case is Dubin v. United States.  

It's pretty amazing that federal district and appellate judges around the country have been imposing two year min-mans in just this scenario for years.  But here we are.

From SCOTUSblog:

As background, petitioner David Dubin was convicted of health care fraud — an enumerated felony. Dubin was the managing partner of a psychological services company that his father had founded. The practice provided mental health testing to youths at emergency shelters. Dubin’s conviction stemmed for a Medicaid claim he submitted in relation to the treatment of a patient. The patient was in fact treated by the practice. And there is not any argument that Dubin submitted the claim without the patient’s permission. Instead, the government’s theory is that Dubin overbilled for the treatment provided — the submitted claim contained “three material falsehoods” related to the type and duration of services provided.

Dubin did not commit identity theft as one may typically think of it. But the aggravated identity theft statute does not use the phrase “identity theft.” And looking at the language of the statute, the government argues that what Dubin did “squarely fits” within the statutory text: He “used” the patient’s name, “in relation to” health care fraud, and he “plainly” acted “without lawful authority” when he committed the fraud.

Dubin disagrees. In his view, the statutory phrase “in relation to” must be read in tandem with the verb “uses.” When viewed together, Dubin contends, the statute “requires a meaningful nexus between the employment of another’s name and the predicate offense.” Moreover, using another’s identity “without lawful authority” requires the government “to show that the defendant used another’s person’s name without permission that was lawfully acquired” — a showing the government did not make here.

A panel of the U.S. Court of Appeals for the 5th Circuit held that the statute covered Dubin’s conduct. The panel reasoned that the statute “operates simply as a two-part question”: “did defendant use a means of identification; and, was that use either ‘without lawful authority’ or beyond the scope of the authority given?” Then, looking to the dictionary for guidance, the panel asserted that “use” means to “employ,” while “without lawful authority” means conduct that is “contrary to law.” Thus, putting the words together, the panel held that because Dubin “employed” the patient’s identification when filing the fraudulent claim, his conduct fell within the ambit of the statute. Judge Jennifer Elrod concurred under the reasoning that binding circuit precedent required this outcome. But if she were writing on a “blank slate,” she would have ruled for Dubin. 

After rehearing the case en banc, a splintered 5th Circuit affirmed Dubin’s conviction. Nine judges signed on to a short opinion that adopted the panel opinion’s reasoning. Eight judges dissented. And one judge thought the issue was not properly before the court.  

The dissenting judges criticized the majority for resorting to the dictionary to interpret “the chameleon-like word ‘use.’” And the dissenters explained that while “a textual case can be made” for the expansive reading of the identity theft statute propounded by the majority (and the government), when there is a plausible narrower interpretation of a criminal statute, Supreme Court case law teaches that a court should adopt the narrower interpretation. The dissenting judges also reasoned that adopting the narrower view of the statute aligned with common sense: “ordinary people understand identity theft to be … the unauthorized use of someone’s identity.” Dubin did not commit identity theft as the crime is commonly understood.

What's going on at the U.S. Attorney's office?

Mark Lapointe has been in the position for a few months now, and the legal community is wondering if anything is going to change at the U.S. Attorney's office or is it going to be more of the same.  

So far, there haven't been any noticeable changes in policy or culture. 

The only real change so far at the office has been naming Mike Davis as his first assistant, which according to numerous sources, surprised many current (and former) prosecutors. Davis prosecuted some of the biggest cases back in the day... but what will be his impact on the culture of the office?  Time will tell.

If you had any suggestions for Lapointe and Davis, what would they be?