“Ladies and gentlemen of the jury, this defendant, a gun toting, drug slinging three time convicted felon . . . .”

That was AUSA Abbie Waxman in her opening closing in United States v. Harrell, No. 1:22–cr– 20245 (SD Fla., Mar. 6, 2023).

Why am I quoting a random trial from 2022?  Because Justice Kavanaugh did as well in dissent in Erlinger v. United States. Erlinger held, per Justice Gorsuch, that the Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions for purposes of the Armed Career Criminal Act.

In Harrell, the district judge did not bifurcate the trial, allowing the prosecutor to prove up the prior convictions during the trial itself, so Kavanaugh was making the point that maybe Erlinger won't be so beneficial to defendants.  I'm not so sure since that was the only case that was not bifurcated.  

Surprisingly, Justice Jackson also dissented in Erlinger saying she believed Apprendi was wrongly decided.  She seems fully in the Justice-Breyer-we-love-the-guidelines dojo. After all, she clerked for him and served on the Sentencing Commission.

Judge William Pryor rules for the defense

Judge Pryor, like Justice Gorsuch, has been channeling his inner-Scalia -- willing to rule for criminal defendants.  The latest is U.S. v. Harding (joined by Jordan and Brasher), which starts this way:

This appeal requires us to decide whether the district court abused its discretion by admitting evidence of drug trafficking as intrinsic evidence of a charged conspiracy that allegedly ended years earlier in a different federal district. A grand jury in the Southern District of Alabama charged James Harding with conspiracy to possess with intent to distribute heroin and possession with intent to distribute heroin. At trial, the United States introduced evidence that agents, in a separate investigation, found multiple firearms and almost two kilograms of heroin at Harding’s home in the Northern District of Alabama over two years after the alleged end of the charged conspiracy. The United States offered no evidence linking the seized evidence to other members of the charged conspiracy. The district court admitted the evidence as intrinsic evidence and ruled, in the alternative, that the evidence was admissible as extrinsic evidence under Federal Rule of Evidence 404(b). But the district court rejected Harding’s several requests for a limiting instruction. The jury found Harding guilty of both charges. Because the district court abused its discretion by admitting the evidence as intrinsic and because its alternative ruling that the evidence was admissible under Rule 404(b) cannot be affirmed in the absence of a limiting instruction, we vacate Harding’s convictions and sentence and remand for a new trial. 

Bravo.  We need more judges who don't just knee-jerk for the government in every case. 

SCOTUS Breathes Some Life into Malicious Prosecution Claims

By John R. Byrne

If you're charged with multiple crimes, arrested and detained, and it later turns out that the authorities lacked probable cause to charge you with at least one of those crimes, do you have a colorable malicious prosecution claim? After all, if probable cause still existed for charging you with the other crimes, what's the harm? The Supreme Court found that there may well be harm, reversing the Sixth Circuit, which had erected a categorical barrier to malicious prosecution claims in cases where at least one charge was supported by probable cause. 

Shout out here to the Eleventh Circuit, which had reached the same conclusion back in 2020 (Judge Pryor wrote that opinion, which the Court cites). 

The Supreme Court chose to not dip its toes into the murky causation waters: if at least one valid charge exists, how can a plaintiff establish causation? Apparently, the parties and amicus curiae proposed three different views on how one might prove causation. Opinion below.

Big game tonight for the Panthers against the Edmonton Oilers. Let's hope they can bring the cup home!

23-50_n648 by John Byrne on Scribd

Hoooo boy. NYT says SDFLA judges asked Cannon to reassign Trump case

Who is spilling the tea to the NYT;

Shortly after Judge Aileen M. Cannon drew the assignment in June 2023 to oversee former President Donald J. Trump’s classified documents case, two more experienced colleagues on the federal bench in Florida urged her to pass it up and hand it off to another jurist, according to two people briefed on the conversations.

The judges who approached Judge Cannon — including the chief judge in the Southern District of Florida, Cecilia M. Altonaga — each asked her to consider whether it would be better if she were to decline the high-profile case, allowing it to go to another judge, the two people said.

But Judge Cannon, who was appointed by Mr. Trump, wanted to keep the case and refused the judges’ entreaties. Her assignment drew attention because she has scant trial experience and had previously shown unusual favor to Mr. Trump by intervening in a way that helped him in the criminal investigation that led to his indictment, only to be reversed in a sharply critical rebuke by a conservative appeals court panel.

The extraordinary and previously undisclosed effort by Judge Cannon’s colleagues to persuade her to step aside adds another dimension to the increasing criticism of how she has gone on to handle the case.

So who is the source? Who is the second judge? 

One question too many

 By John R. Byrne

How many jury questions can a magistrate judge answer if a district judge assigns the MJ to receive a jury verdict and neither party timely objects to that assignment? According to the 11th Circuit, 0.  The court just reversed a $4.95 million jury verdict where a district judge assigned a magistrate judge to receive a verdict and the magistrate judge, while presiding, answered jury questions. 

It all started with a district judge trying to catch a plane. The court asked the parties if they were o.k. having the paired magistrate judge "take my place in terms of receiving the verdict from the jury." Neither party objected. If the story ended there, we wouldn't be here. The "mere acceptance of a jury verdict and the polling of a jury constitute no more than ministerial tasks that a magistrate judge may properly perform" (and that's true whether or not the parties consent). But this jury was inquisitive. Questions and notes. Six of them. And, as the Eleventh Circuit explained, responding to jury questions is a "critical stage" of a trial that requires either a presiding Article III judge OR the parties consenting to the MJ performing such a task. This case had neither, so reversal was required. 

Not a fun way to lose a verdict after a 16-day trial!

PB Legacy by John Byrne on Scribd

New podcast episode For The Defense -- CNN's Kaitlan Collins

FOR THE DEFENSE -- SEASON 6, EPISODE 2 KAITLAN COLLINS Cross examining witnesses is one of the hardest things criminal defense lawyers do.  There's a lot to be learned from journalists who do it live on the air with difficult politicians.  And CNN's Kaitlan Collins is one of the best at doing it.  In this episode, we discuss how she prepares for her interviews, how she deals with difficult interviews, as well as lots of other interesting topics -- from cameras in the courtroom to covering high profile trials and so on.  This podcast episode is a recording from my White Collar Law class at the University of Miami School of Law.  I think you'll agree after listening that Kaitlan is terrific.  Listen on your computer here, or on Apple and Spotify. And I've posted the raw video on YouTube. Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here.   Hosted by David Oscar Markus and produced by rakontur

Judge Roy Altman leads by example (with unrelated updated)

Jewish-owned business targeted by hateful vandalism. Miami mayor @FrancisSuarez and federal judge Roy Altman show up to help clean it up. Story on @nbc6 starting at noon. pic.twitter.com/ybgWz1tGJb

— Ari Odzer (@ariodzernbc6) June 17, 2024

In an unrelated update, the Supreme Court granted cert today in another fraud case, Kousisis v. United States: In order to get work, the defendant used as a front a company that qualified as a “disadvantaged business enterprise,” though the company performed no actual work. His claim on appeal is that his actions did not constitute mail or wire fraud because they were not intended to cause economic harm. The 3rd said it was enough for fraud* and the High Court granted cert:

 (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) whether all contract rights are “property.”

 *Note to district courts and appellate courts -- it's okay to dismiss indictments and find that prosecutors overcharge.  The Supreme Court keeps reversing these fraud cases.  You can too!

You be the judge

How much time should Donald Trump receive for his conviction in New York for falsifying business records?

What about Hunter Biden in Delaware for being an addict in possession of a firearm?

Both should get probation.

After all, both are first time, non-violent offenders.   And there were no victims in either case. 

But I suspect both will get some jail time.

I'm setting the over under at 6 months in each case. 

What would you do if you were the judge and what do you predict they will actually receive?