Eleventh Circuit Votes En Banc to Consider Forum Designations

By John R. Byrne

For you First Amendment scholars out there, the Eleventh Circuit just granted re hearing en banc in McDonough v. Garcia, 90 F.4th 1080, 1086 (11th Cir. 2024). The case involved a community gadfly-type who was barred from attending Homestead city council meetings. 

 

In the opinion, Judge Grant surveyed Supreme Court and Eleventh Circuit cases discussing the four types of forums--traditional public forums, designated public forums, limited public forums, and non-public forums. The panel, seemingly begrudgingly, ruled that city council meetings fell into the more speech friendly "designated public forum" category, reversing the district court's grant of summary judgment to Homestead. But it seems like the Eleventh Circuit may be interested in moving those meetings into the less speech friendly "limited public forum" bucket (meaning the city can restrict speech so long as those restrictions are viewpoint neutral and reasonable).

 

Attached is the panel opinion, which is a must read if you're a law student about to take the final in your First Amendment class.

McDonough by John Byrne on Scribd

Friday news

 First, a big congrats to our three new judges.  Jackie Becerra, David Leibowitz, and Melissa Damian were all confirmed this week.  And Judge Becerra was sworn in yesterday, which means she will take the Miami seat.  The next judge who is sworn in will spend a short amount of time in Ft. Lauderdale and then to Miami.  The third judge to be sworn in will be in Ft. Lauderdale for a while.  Current judges: get your transfer orders ready!

In case-related news, Manuel Rocha, the Cuban spy, announced yesterday that he would be pleading guilty.  That was FAST.  From the AP's Joshua Goodman:

A former career U.S. diplomat told a federal judge Thursday he will plead guilty to charges of working for decades as a secret agent for communist Cuba, an unexpectedly swift resolution to a case prosecutors called one of the most brazen betrayals in the history of the U.S. foreign service.

Manuel Rocha’s stunning fall from grace could culminate in a lengthy prison term after the 73-year-old said he would admit to federal counts of conspiring to act as an agent of a foreign government.

Prosecutors and Rocha’s attorney indicated the plea deal includes an agreed-upon sentence but they did not disclose details at a hearing Thursday. He is due back in court April 12, when he is scheduled to formalize his guilty plea and be sentenced.

The brief hearing shed no new light on the question that has proved elusive since Rocha’s arrest in December: What exactly did he do to help Cuba while working at the State Department for two decades? That included stints as ambassador to Bolivia and top posts in Argentina, Mexico, the White House and the U.S. Interests Section in Havana.

“Ambassador Rocha,” as he preferred to be called, was well known among Miami’s elite for his aristocratic, almost regal, bearing befitting his Ivy League background. His post-government career included time as a special adviser to the commander of the U.S. Southern Command and more recently as a tough-talking Donald Trump supporter and Cuba hardliner, a persona friends and prosecutors say Rocha adopted to hide his true allegiances.

New judge update (NUMEROUS UPDATES)

1. Jackie Becerra is up for a full vote at 11am. UPDATE -- Becerra has been confirmed 56-40. 

Thursday update -- Judge Becerra was sworn in today after President Biden signed her commission. 

2. David Leibowitz is expected to be up for a full vote at 2pm. UPDATE -- Leibowitz has been confirmed 64-33.

3. Melissa Damian is expected to get a cloture vote next week. UPDATE -- Actually, it will be this week.  Debate ends Wednesday, and full vote Thursday. SECOND UPDATE -- the Senate is moving quickly. Damian is scheduled for final floor vote at 5:30 today (Wednesday)

Third Update -- Damian has been confirmed 77-20. 

Congrats to all three new judges!!

“As Hyman Roth said, ‘This is the business we have chosen.’‘’

 That was Judge Bob Scola at the plea and sentencing of Philip Esformes.  The Herald covers it here:

A South Florida businessman pleaded guilty on Thursday to stealing millions of dollars from the taxpayer-funded Medicare program, capping a long-running healthcare fraud case marked by a commutation of his initial 20-year sentence by President Donald Trump in late 2020. 

Philip Esformes, who formerly lived in Miami Beach while running a chain of skilled-nursing and assisted-living facilities, showed no emotion as a federal judge spared him from going back to prison but imposed tens of millions of dollars in financial penalties reflecting his ill-gotten gains. 

Other than acknowledging his criminal activity as a healthcare operator who paid and received bribes in exchange for Medicare patients, Esformes said little during his change of plea hearing in Miami federal court and didn’t respond to a reporter’s question afterward. 

The plea agreement was reached earlier this month between the Justice Department and Esformes in one of the nation’s biggest Medicare fraud cases. Despite Trump’s commutation of his initial prison term, Esformes faced a potential retrial on the main healthcare fraud conspiracy count and five related charges from his first trial in 2019 because a Miami federal jury deadlocked on those offenses while finding him guilty on 20 others. The Justice Department vowed to retry Esformes as prosecutors negotiated a plea deal behind the scenes with his defense lawyers.

U.S. District Judge Robert Scola highlighted the “unusual” circumstances of Esformes’ healthcare fraud case, revealing for the first time what he thought about President Trump’s commutation of Esformes’ sentence after he had only served 4 1/2 years, including his time in detention after his arrest in July 2016. 

“I can’t say that I was not disappointed when his sentence was commuted by the president,” Scola said, while pointing out that under the Constitution a president has the prerogative to grant clemency petitions. 

Then, referring to a mob boss’ famous line in the Godfather II movie, the judge noted: “As Hyman Roth said, ‘This is the business we have chosen.’"

Two new Magistrate Judge positions opening (hopefully!)

 From the court's website; applications are due 3/31.

The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida at Miami, Florida.  These appointments will succeed incumbents who are expected to be confirmed as United States District Judges.  The term of office is eight years.

A full public notice is posted on the Court's website at:
https://www.flsd.uscourts.gov/.

Interested persons may contact the Clerk of the District Court for additional information and application form.  The application form is also available on the Court's website https://www.flsd.uscourts.gov/.  Applications must be submitted only by applicants personally to; FLSD_magistratejudgerecruitment@flsd.uscourts.gov no later than 11:59 p.m. on Sunday, March 31, 2024.

Update on new judges

 I'm told that Jackie Becerra and David Leibowitz will get floor votes as early as next week. They should both get sworn in shortly afterwards. Whoever is sworn in first will get the open Miami seat with the other judge starting out in Ft. Lauderdale. I'm also told that Melissa Damian will be in the next batch right behind them, maybe a few weeks away. Those transfer orders will be flying across CM/ECF! 

Maduro, Pardons, and Sentence Reductions

By John R. Byrne

President Biden may have pardoned Alex Saab, a Venezuelan businessman and Maduro supporter who conspired with others to inflate the price of food and medicine during a hunger crises in Venezuela. But some of his co-conspirators were left behind. Judge Ruiz recently granted one of those co-conspirators a hefty sentence reduction, noting his cooperation and contrasting his situation with others like Saab who had "skipped town." The Associated Press covers it here.

Apparently the pardon of Saab was part of a goal "to improve relations with the OPEC nation and pave the way for freer elections." 

Bonus Podcast Episode -- Judge Nancy Abudu

Judge Nancy Abudu being sworn in as our newest 11th Circuit judge I am very excited to share this bonus episode with you -- an interview with our newest 11th Circuit Judge, Nancy Abudu. I think you will be impressed with how open and humble Judge Abudu is, not to mention how smart and quick-witted.  I had never met or spoken to her before, and it struck me how likable and nice she was! You can access it on Apple, Spotify, or any other platform from our website here. You'll recall we've had other 11th Circuit judges on the show before, including Chief Judge Pryor and Judge Rosenbaum, as well as district judges Charles Breyer, Jed Rakoff, and former judge John Gleeson. If I was putting together a Supreme Court, these six would be a pretty good start. Anyway, I hope you enjoy the episode with the terrific Judge Nancy Abudu. Thank you! --David   Hosted by David Oscar Markus and produced by rakontur