Senate confirms Nancy Abudu to 11th Circuit

 From Reuters:

The U.S. Senate on Thursday confirmed President Joe Biden's nominee to the 11th Circuit U.S. Court of Appeals, overcoming rare Democratic opposition from Senator Joe Manchin.

Nancy Abudu, a lawyer for the nonprofit Southern Poverty Law Center (SPLC) legal advocacy group, was confirmed on a 49-47 vote. She will be the first Black woman to serve on the Atlanta-based 11th Circuit.

Abudu's nomination drew strong Republican opposition, and she faced a new obstacle on Wednesday night when Manchin, a moderate Democrat from West Virginia, broke ranks to oppose advancing her nomination.

Don't snap a pic in federal court

 It happened in the Corollo trial and Judge Rodney Smith is not happy.  The Miami Herald covers it here:

The lawsuit involving Miami Commissioner Joe Carollo was throw into disarray Wednesday morning when the federal judge overseeing the case briefly threatened to send the commissioner’s attorneys to prison over a photo that was taken inside the courtroom. Taking pictures inside federal courtrooms is strictly prohibited and U.S. District Court Judge Rodney Smith was livid when one showed up in a filing from Carollo’s attorneys, Ben Kuehne, Mason Pertnoy and Marc Sarnoff. The picture, which the judge said was included in a sealed document and never shown in court, apparently showed an attorney for the Little Havana businessmen suing Carollo talking to a media member in Smith’s courtroom. Smith did not name them or six other people also shown in the photo, which he said was taken by another attorney, Jesse Stolow, who is part of the defense team and had been attending the proceedings. “This is one of the most egregious reprehensible disrespectful actions you could make against this court. It requires prison time. We will see how it can be avoided,” Smith said. “I’ve never seen something like this in my life. What happens here sets a precedent.”

I still want cameras in federal courts, but I guess that's a long ways away.
 

 

"I also want to underscore my disgust at how outrageous the prosecution’s conduct in closing argument was."

 That was Judge Rosenbaum, concurring with an unpublished 107 page opinion in Pace v. Warden:

The prosecutor’s antics have no place in our system of justice. To recap just a couple of the prosecutor’s egregious remarks, he urged the jurors to im-pose the death penalty rather than send Pace to prison for life be-cause “if anal sodomy is your thing, prison isn’t a bad place to be.” The despicable nature of this comment speaks for itself. Not satis-fied with that, the prosecutor also told the jury to sentence Pace to death because if it did not, it would be “saying that these victims’ lives didn’t matter.” It goes without saying that it is never appro-priate or even permissible to attempt to guilt a jury into a death verdict. These tactics aren’t close to the line or justifiable. They are squarely and obviously improper.

I applaud Judge Rosenbaum for calling out these antics.  But the opinion does not name the prosecutor.  And there are no repercussions for the unethical conduct.  So the conviction is affirmed, and then nothing... what's the message for prosecutors?

Rein em in

Last week I posted about the First Circuit's big decision in Varsity Blues, reining in a rogue federal prosecution.  

The hits keep coming -- this time the Supreme Court unanimously reversed the Second Circuit's "right-to-control" theory which they have been using to punish defendants for decades.  The case is Ciminelli v. United States.  Here's the intro to SCOTUSblog summary:

For decades, the Supreme Court has steadily narrowed the scope of the federal criminal wire fraud statutes, and Thursday’s decision in Ciminelli v. United States is no exception. The court held that the federal criminal wire fraud statutes do not incorporate a “right to control” theory of fraud. The court referenced both federalism and overcriminalization concerns in narrowing the scope of the wire fraud statutes, pushing federal prosecutors to be more precise in articulating fraud cases against suspicious state contractor activity. As Justice Samuel Alito’s concurrence explains, though, the precise outcome for Louis Ciminelli himself or others accused of fraud is less clear.

And in another case, the High Court reversed an honest services conviction in Percoco v. United States.  From SCOTUSblog because the jury instructions were wrong:

Before his 2018 trial, Percoco asked the judge to dismiss the “honest services” charge against him, arguing that a private citizen cannot be convicted of depriving the public of its right to honest services. The court rejected that request, and Percoco was convicted and sentenced to a total of six years in prison. The U.S. Court of Appeals for the 2nd Circuit upheld his conviction.

In an opinion by Justice Samuel Alito, the Supreme Court on Thursday threw out Percoco’s conviction. Like the lower courts before them, the justices declined to adopt a bright-line rule holding that private citizens can never have the kind of fiduciary responsibility to the public that would allow them to be held liable for depriving the public of its right to their honest services.

Percoco’s conviction still cannot stand, the justices ruled, because the instructions that the trial judge gave to the jury in his case were too vague. The judge told the jury, Alito observed, that Percoco “owed a duty of honest services to the public if (1) he ‘dominated and controlled any governmental business’ and (2) ‘people working in the government actually relied on him because of’” his relationship with the government. But that standard does not, Alito continued, provide enough information about what conduct is or is not allowed, nor does it shield against arbitrary enforcement by prosecutors.

So I urge district judges again -- it's okay to grant motions to dismiss and Rule 29s!  It's okay to give defense instructions and not the patterns.  The Supreme Court has your back. 

How involved should judges be in the community?

By John R. Byrne

Happy Friday. Carlton Fields hosted Judges Scola, Altman, and Singhal and the local chapter of the Federal Bar Association for a CLE on judicial ethics. Interesting discussion about how involved federal judges should be in the community (the "Ivory Tower" approach versus active speaking/meeting with practitioners and members of the community). I think our bench is one of the more engaged benches, on the whole. 

Big games tonight for the Heat (ESPN @7:30) and Panthers (TNT @7). 

Prosecution trounced in Varsity Blues appeal

 You gotta check out this First Circuit opinion reversing the Varsity Blues' convictions.  It's exactly why more defendants should fight these weird fraud theories. 47 out of the 50 defendants pleaded out.  Three cases went to trial.   Two were acquitted and one was reversed on appeal.

District judges: we need you to do more to check these crazy prosecutions instead of letting them get all the way to trial.  It's okay to grant motions to dismiss!  You will get affirmed.  And if not, the case will get reversed and then it will be tried.  Nothing lost... These defendants suffered a lot and 47 others pleaded guilty because motions to dismiss this first of its kind theory were denied over and over again.

Real ethical issues versus fake ones

 I've been posting a bunch about the ethical issues popping up with the Supreme Court Justices recently.  From Ginni Thomas to Harlan Crow and so on.  Some of these issues are real concerns, especially Ginni Thomas' role in January 6.  

One issue, though, that I expressed skepticism about last week was Chief Justice Roberts' wife being employed as a legal recruiter.  The more I think about it, the more I don't get the uproar.  She is a lawyer who left her law job because she did not want the appearance of impropriety.  And now she is working as a legal recruiter.  She should not have to step away from her job. 

Here are two articles saying Jane Roberts' job is a nothingburger (Above the Law and Bloomberg).

Interested in your thoughts.

"Supremely Arrogant"

That's the title of Maureen Dowd's NYT op-ed on the Supreme Court.  From the conclusion:

John Roberts cannot accept that these justices are incapable of policing themselves. Despite all the slime around him, he refused to testify before Congress about a court that blithely disdains ethics.

One reason may be, as The Times reported, that the chief justice’s own wife, Jane, has made millions of dollars as a legal recruiter, placing lawyers at firms with business before the Supreme Court.

Even though I’ve been writing since Bush v. Gore that the court is full of hacks and the bloom is off the robes, it is still disorienting to see the murk of this Supreme Court.