Michael Dreeban joins special counsel in SCOTUS and other moves

 The NY Times has the interesting story here about how the Special Counsel, now led by Michael Dreeban in the Supreme Court, has asked SCOTUS to take Trump's appeal directly and bypass the court of appeals.

In other SCOTUS news, the High Court has turned away the Esformes cert petition, setting up the potential retrial before Judge Scola.

One of the main trial lawyers for DOJ, Allan Medina (son of beloved court reporter Barbara Medina), has left the government and joined Goodwin.

New magistrate judge named

Back in October, the blog broke the news that the judges had voted Randy Katz as our newest magistrate judge.  However, Randy has withdrawn his name from consideration.  My understanding is that the newest nominee is Marty Fulgiera Elfenbein, a current AUSA.  

Marty was an associate at Kirk Caldwell and clerked for Judge Bloom.  

Congratulations!

Potential Lawsuits over FSU Snub

 

By John R. Byrne

If you're a college football fan, you know about the recent travesty of FSU being snubbed by the College Football Selection Committee. Did we really need to see Alabama in another college football playoff? Although there's no fixing it now, there may be a lawsuit coming. Governor DeSantis set aside $1 million in the state's upcoming budget for a lawsuit against the College Football Committee. And Senator Scott has already issued a letter to Boo Corrigan, the Chairman of the Committee, demanding emails, text messages, and the like regarding the selection process. Even a judge in our own district, Judge Singhal, made a lighthearted reference to the snub in a recent order.

Hopefully, the Seminoles can beat Georgia and the AP can name FSU national champ. 

New Podcast episode!

 

pictured: Randall Jackson (left), Tom Barrack, and Michael Schachter (right) FOR THE DEFENSE, HOLIDAY BONUS EPISODE: MICHAEL SCHACHTER AND RANDALL JACKSON FOR TOM BARRACK I hope everyone is doing great! For our 40th episode (!!), we have a really great one for you: Michael Schachter and Randall Jackson for Tom Barrack. This was a wild trial in New York, where Barrack was charged with FARA violations (being an unregistered agent of the UAE).  You can guess the result from the picture above, which was taken after the verdict.  I love how you can see the joy on their faces! Schachter and Jackson are real trial lawyers, and we discuss trial strategy from picking a jury to whether and how much to use PowerPoint to calling your client in a white collar case to the use of stories in opening and closing, and so on. I think you'll enjoy it. As always, you can catch this and other episodes on every podcast platform including Apple, Spotify and YouTube,  All other platforms can be accessed on this website.  Don't forget that last season qualified for Florida CLE and was listed at the end of the season finale (the Andrew Gillum episode). Hosted by David Oscar Markus and produced by rakontur   CONTACT: info@rakontur.com, dmarkus@markuslaw.com null

Miami Spy Game

By John R. Byrne

Pretty crazy story broken by Joshua Goodman, a reporter from the AP, about a former American diplomat who was allegedly a spy for Cuba. For two decades the man, Manuel Rocha, held top diplomatic posts on behalf of the United States in Bolivia, Argentina, and the U.S. Interests Section in Havana. All the while, he was living a double life, allegedly bringing intelligence back to Cuba. Part of his cover, apparently, was posing as an ardent "right-wing person," including as a major fan of former President Trump.

And it probably continued into his time at the private sector. In his post-government career, he served as a special advisor to the commander of the U.S. Southern Command. 

The U.S. Attorney's office in Miami charged him in a criminal complaint, posted here. He's being defended by Jackie Arango.

Criminal Complaint by John Byrne on Scribd

And means And, part 2. (UPDATED with Judge Jordan's memories of Justice O'Connor)

 We know from United States v. Garcon that in the 11th Circuit "and" means "and" for purposes of the safety valve provision of the Sentencing Guidelines.  (Another case involving the same issue was argued earlier this Term in the Supreme Court.)

Despite the en banc 11th Circuit already saying "and" means "and" for purposes of the Sentencing Guidelines, federal prosecutors and probation officers are taking the position that the word "and" means "or" in the new "Zero Point Offender" sentencing guideline provision, which provides that if you have no criminal history, you receive an additional two level reduction so long as certain other conditions are met.  One of the conditions is that:

"(10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848." (emphasis added).

Seems pretty clear as a matter of statutory construction and binding precedent that to be disqualified, you'd have to receive an aggravating role enhancement AND be in engaged in a CCE.  If you don't have both, you would still qualify for the two level reduction.

And at least two district judges in our district have so held, overruling objections from local AUSAs and probation officers, who are urging judges to disregard Garcon.  It's wild to me that there are some prosecutors so invested in increasing a first time offender's sentence by two levels that they are willing to ask a judge to ignore a binding 11th Circuit case and a pretty basic, straightforward reading of the statute.  It's one thing if these prosecutors were arguing -- listen, we know the 11th Circuit has ruled the other way, but the case is pending in the Supreme Court and we'd like to preserve this issue.  And don't get me started on the probation officers... why do they have a say in this at all?  They are not lawyers and should not be arguing the guidelines.  It's maddening.

In any event, Justice O'Connor would have really enjoyed the statutory construction issue in Garcon. She was a true inspiration to so many.  Here are the statements of the Justices about her passing.  

Here's the Chief:

Statement of Chief Justice John G. Roberts, Jr.:

A daughter of the American Southwest, Sandra Day O’Connor blazed an historic trail as our Nation’s first female Justice. She met that challenge with undaunted determination, indisputable ability, and engaging candor. We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education. And we celebrate her enduring legacy as a true public servant and patriot.

R.I.P.

UPDATED -- Thanks to a commenter for pointing me to this AJC article, which quotes Judge Jordan extensively about Justice O'Connor (he clerked for her back in the late 80s):

He fondly remembered being invited to her Chevy Chase home in Maryland most Saturdays, when O’Connor would cook while discussing the following week’s cases with her clerks.

Tex-Mex was usually on the menu, Jordan said.

“The stuff that she made for us was very, very good,” he told The Atlanta Journal-Constitution. “Tacos, burritos, nachos. Things like that. It wasn’t all exclusively Tex-Mex, but that was, I think, the majority of her repertoire.”

...

On the occasional Saturday spent working in O’Connor’s chambers, Jordan said she would bring food from home. He said the weekend conferences were a special time for the clerks as O’Connor shared her detailed thoughts on cases.

SDFLA nominees perform well before the Senate Judiciary Committee

 Here are their opening statements.  Really well done.  I thought each of the nominees gave personal and touching openings.  And they were all very well spoken.

NOMINEE: Jacqueline Becerra to the Southern District of Florida

Judge Becerra’s judicial and litigation experience — both as a federal prosecutor and in private practice — has prepared her to serve with distinction. pic.twitter.com/VfmtQVEO4e

— Senate Judiciary Committee (@JudiciaryDems) November 29, 2023

NOMINEE: Melissa Damian to the Southern District of Florida

As a litigator, Judge Damian tried more than 30 cases to verdict.

Her experience in the courtroom in both civil and criminal matters has prepared her to serve on the federal bench. pic.twitter.com/v3NLDmGkbG

— Senate Judiciary Committee (@JudiciaryDems) November 29, 2023

NOMINEE: David Leibowitz to the Southern District of Florida

Mr. Leibowitz is an accomplished litigator who has prosecuted a wide range of federal crimes, from insider trading to terrorism.

He has strong ties to this district, and his experience will be an asset. pic.twitter.com/FNM6nAsCSp

— Senate Judiciary Committee (@JudiciaryDems) November 29, 2023

SDFLA Senate Judiciary Hearing this morning

 Good luck to Jackie Becerra, Melissa Damian, and David Leibowitz who will be appearing before the Senate Judiciary Committee at 10am this morning.

You can watch it here.