Parallels in Statutory Interpretation

By John R. Byrne

Interesting dissent from Judge Rosenbaum in an order denying rehearing en banc. At issue was the American Rescue Plan Act of 2021, which gave the states over 200 billion dollars to deal with the coronavirus pandemic. But the federal government argued there were strings attached to that funding, strings that 13 different states (including Florida) challenged. The original panel held that the feds could not enforce those conditions, relying on precedent that required such conditions to be expressed "unambiguously" and "with a clear voice."

In her dissent, Judge Rosenbaum criticized the majority for not following the US Supreme Court's approach to statutory interpretation. She wrote that "The Supreme Court has told us that 'before concluding that a [statute] is genuinely ambiguous, a court must exhaust all the traditional tools of construction'" and stressed the need to consider "the statutory context" and the "statutory structure." In response to her criticism, Judge Brasher faulted the feds for not presenting these statutory interpretation arguments in the first place.

The commentary on statutory interpretation by Judge Rosenbaum is strikingly similar to language recently used by the Florida Supreme Court. In Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022), Florida Supreme Court Justice Muniz wrote that, when interpreting a statute, a court must consider “the [statutory] language itself, the specific context in which that language is used, and the broader context of the statute as a whole” and that "the traditional canons of statutory interpretation can aid the interpretive process from beginning to end."

Order below.

American Rescue Plan Act Case by John Byrne on Scribd

Should prosecutors who commit crimes be permitted to continue as prosecutors?

 AP's Joshua Goodman has this report about Tampa AUSA Joe Ruddy:

When police arrived at his house to investigate a hit-and-run, Joseph Ruddy, one of the nation’s most prolific federal narcotics prosecutors, looked so drunk he could barely stand up straight, leaning on the tailgate of his pickup to keep his balance.

But he apparently was under control enough to be waiting with his U.S. Justice Department business card in hand.

“What are you trying to hand me?” an officer asked. “You realize when they pull my body-worn camera footage and they see this, this is going to go really bad.”

You can watch the video of the stop and encounter at this tweet:

.

"You realize when they pull my body-worn camera footage and they see this, this is going to go really bad"

Veteran federal prosecutor in Tampa hands police officer his @TheJusticeDept business card after drunkenly leaving scene of hit-and-run on July 4

w/ @JimMustian pic.twitter.com/v8tkHq4TwF

— Joshua Goodman (@APjoshgoodman) September 8, 2023

For the Defense, Season Finale

 

pictured: Margot Moss (left), Andrew Gillum and his family (center), and David Markus (right)
 

FOR THE DEFENSE, SEASON 5 FINALE:
MARGOT MOSS (AND I) FOR MAYOR ANDREW GILLUM

Season 5 has been a blast. Thank you all so much for listening and for your supportive emails.  I really appreciate it.

The season finale is a special episode for me as I got to sit down with my partner Margot Moss and discuss a recent trial we finished a few months ago involving Mayor Andrew Gillum.  (Our team also included Katie Miller and Todd Yoder). You'll enjoy hearing Margot's passion for criminal defense and how she won this case in her opening statement. 

As always, you can catch this and other episodes on every podcast platform including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

This season's Florida CLE code is listed at the end of this episode. If you're a Florida lawyer, you'll get 9.5 general credits, 2.5 ethics credits, and 1.5 technology credits.  Not bad for a free podcast.  All that I ask in return is that you spread the word, leave reviews, and subscribe.  It will take you 30 seconds. THANK YOU.

The podcast continues to make news. Most recently, the interview of John Lauro was discussed in the New York Times, and was previously cited in in the Wall Street Journal, Politico, Salon, CBS, and other outlets. If you missed it, you can check it out on audio and YouTube.

I also want to thank our other awesome guests this season:  Milton Hirsch, Todd Blanche, Gerry Lefcourt, Lisa Wayne, Matt Menchel, Barry Scheck, and Craig Albee.  Their trials and stories were inspiring. 

There are also a few Markus/Moss updates from the last few months while we're here:

• Since it's all Trump all the time, I've been making the rounds on various news shows to discuss recent developments, including Kaitlin Collins (here), Erin Burnett (here and here), Jim Acosta (here), Greta Van Susteren (here, here, and here) and Glenna Milberg (here). It's been a lot of fun.
• 
• Margot Moss was named the Criminal Justice Act Representative for the Southern District of Florida, which is a huge responsibility and honor. She also appeared on the wonderful Athena Rising podcast with Vanessa Johannes and Marissel Descalzo. 
• 

 

• We are currently fighting the government's efforts to freeze all of our client's assets pretrial.  Although its early, this ruling -- covered by the Miami Herald -- was favorable and is of interest.  The team includes Lauren Doyle.
• One of our biggest wins this year was a decision from the government (memorialized in a letter) not to prosecute our client, the CEO of a publicly traded company after we made a number of presentations along with wonderful co-counsel.
• The Firm and its lawyers continues to be recognized in Chambers and Best Lawyers.  Chambers named David a "Star Lawyer" and Best Lawyers awarded him "Lawyer of the Year."  Margot and Mona were recognized as well.

We love trials, criminal defense, and speaking to the lawyers. We hope you are enjoying this podcast as much as we are doing it. Please stay in touch with your suggestions and comments.  If you have a friend that would like to receive these updates, please have them sign up here.

Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur

 

CONTACT: info@rakontur.com, dmarkus@markuslaw.com

Bench and Bar (cont.)

By John R. Byrne

After a long hiatus, the Court held its semi-annual Bench and Bar Conference last Friday at the Miami Beach Convention Center. The event enjoyed record attendance, with over 1000 members of the bar attending. 

The decision to have fewer panels to ensure robust attendance at each panel was smart and the App allowed the moderators to ask questions from the audience in real time (and *mostly* avoided audience members hijacking the discussions with lectures masquerading as questions!)

I know there were complaints about the Gideon panel composition from the criminal defense bar. Still, Judge Williams and Judge Scola made powerful cases for the dire need for more federal funding for indigent representation. 

A really nice event put on by Chief Judge Altonaga and Judge Altman. Some pictures below. 

Panel on multi-district litigation with Judge Moreno, Judge Ruiz, Judge Rosenberg, Judge Singhal, and Podhurst partner Peter Prieto.

Afternoon plenary session on Gideon v. Wainwright with Judge Williams, Akhil Amar, Judge Scola, and David Howard.

Panel on criminal trials with Judge Marra, Judge Dimitrouleas, Chief Judge Altonaga, Judge Altman, Judge Cohn, and Judge Torres.

Supreme Court Roundup with Neal Katyal and Miguel Estrada.

Panel on civil jury trials with Judge Middlebrooks, Chief Judge Altonaga, Judge Bloom, Judge Altman, and Kozyak partner Ben Widlanski.

Bench & Bar conference

The big SDFLA conference is today.  It's a huge event and looks to be very successful.  If you are there, take some pictures and I will post them. (email them to me at dmarkus at markuslaw dot com)

One bit of controversy -- it's also the 60th anniversary of Gideon and there's a Gideon panel at the conference.  However, there is no public defender on the panel (the panel does include Judge Kathy Williams, the former FPD and David Howard, a criminal defense lawyer).  The local criminal defense listserv was fired up about it last night.  

In other news, prosecutors are pushing forward with charges against Hunter Biden, including possession of a firearm while being an addict.  The problem -- right wing judges have already struck down this statute as unconstitutional.

Georgia prosecutors are cray cray

 They are saying they plan on calling 150 witnesses and taking 4 months to try their case.  And they will likely have to do it more than once.  Those poor jurors.  

In Florida news, the Florida Supreme Court has abandoned the presumption of innocence and says that “The fact that a lawyer has been charged with a felony by an indictment or information in state or federal court may, for the purposes of this rule, constitute clear and convincing evidence that the lawyer’s continued practice of law would cause great public harm when such a felony charge alleges conduct reflecting adversely on the lawyer’s fitness to practice law.”  

Hmmm.  

Don't we tell juries that a charge is not proof of anything and should not be considered when deciding guilt or innocence?  Apparently our fine state Supreme Court disagrees. 

Another sketchy white collar prosecution thrown out

 This time its the soccer prosecutions in EDNY.  From the AP:

A federal judge threw out the convictions of a former Fox executive and a South American sports media and marketing company in the FIFA bribery investigation, citing a May decision by the U.S. Supreme Court in a case involving an aide to former New York Gov. Andrew Cuomo.

U.S. District Judge Pamela K. Chen, who presided over the trial in Brooklyn federal court, granted a motion for an acquittal in a 55-page decision filed Friday night.

Hernan Lopez, the former CEO of Fox International Channels, was convicted on March 9 along with the marketing company Full Play Group SA of one count each of wire fraud conspiracy and money laundering conspiracy related to the Copa Libertadores club tournament.

Full Play was convicted of two additional counts each of wire fraud conspiracy and money laundering conspiracy related to World Cup qualifiers and friendlies and to the Copa América, the continent’s national team championship.

***

“The Supreme Court’s latest wire fraud decisions — especially Percoco — and the absence of precedent applying honest services wire fraud to foreign commercial bribery, requires this court to find that (the statute) does not criminalize the conduct alleged in this case and that therefore the evidence at trial was insufficient to sustain defendants’ convictions under that statute,” Chen wrote.

She added: “Defendants’ convictions for money laundering, predicated on their honest services wire fraud convictions, also cannot be sustained. The court therefore grants defendants’ motions to acquit on all counts of conviction.”

 In other news, some inmates are playing D&D while others are listening to Taylor Swift.  We should be giving inmates iPads and phones so that they can make the most of their time in prison.

In news closer to home, Judge Rosenberg dismissed a case on standing grounds where the merits issue was whether the 14th Amendment barred Trump from running for President.

Judges are crushing defendants even those with no criminal history, so the Sentencing Commission steps in

 Defense lawyers have long been arguing that the way the guidelines treat folks with no criminal history is too harsh.  Judges have mostly ignored these arguments for the past 30 years.  

Well, now the Sentencing Commission has jumped in and said that folks with no criminal history (and no violence) should get an additional 2 levels off of their sentence.  AND it's going to be retroactive. 

  From Reuters:

The United States Sentencing Commission (USSC), in a 4-to-3 vote, allowed for delayed retroactive application of Amendment 821 relating to criminal history—meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024 (unofficial text). Amendment 821 creates a new Chapter Four guideline at §4C1.1 (Adjustment for Certain Zero-Point Offenders) providing a decrease of two levels from the offense level determined under Chapters Two and Three for defendants who did not receive any criminal history points under Chapter Four, Part A and whose instant offense did not involve specified aggravating factors. In short, for many white collar crimes and lower-level drug offenses, it could mean months or years off of a sentence.

***

The USSC estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.