Judge Darrin Gayles celebrates 10 years on the federal bench (and 20 as a judge)

20 years as a judge, wow.

Seems like yesterday we were brand new lawyers appearing before Judge Graham not knowing what we were doing.

Here's a cool picture of Judge Gayles with some of his law clerks and staff.

Congrats Judge Gayles.

School Board Gets a Lesson on Free Speech from the Eleventh

By John R. Byrne

Who knew school board meetings could get this intense? The Eleventh Circuit just issued an opinion holding that the Brevard County School Board's policies governing speech at school board meetings violated the First Amendment. The board had policies prohibiting "abusive," "personally directed," and "obsence" speech. The court said that while "abusive" and "obscene" speech could be restricted in principle, the school board had offered fuzzy definitions of the terms that would reach protected speech. According to the Court, "giving offense is a viewpoint" and "a restriction barring that viewpoint effectively requires 'happy talk,' permitting a speaker to give positive or benign comments, but not negative or even challenging one."

Judge Wilson dissented, in part. For much of his dissent, he offered examples of speech that the board actually allowed, his point being that it's not as though the board was out to muzzle any particular agenda. He also disagreed with the majority's ruling striking down the ban on "personally directed" speech. His point seems well taken here. It appears that the majority was overreading that restriction (Wilson pointed out that it only required a speaker to address their comments to specific board members/the board as a whole/the presiding officer, not that it banned a speaker from naming names). 

Anyway, on the off chance that you're speaking before the Brevard School Board anytime soon (or crafting speech policies for a limited public forum), a must read....

Happy Friday.

Moms for Liberty by John Byrne on Scribd

Eleventh Circuit Blesses Florida Riot Statute

By John R. Byrne

Hope everyone is staying dry and safe. Another win for the State of Florida at the Eleventh Circuit. After a series of protests opposing police violence, the Florida legislature amended Florida’s criminal riot statute. That led to challenges by various civil rights organizations. The challenges? Vagueness and overbreadth. Here is the statutory language:

A person commits a riot if he or she willfully participates in a violent public disturbance involving an assembly of three or more persons, acting with a common intent to assist each other in violent and disorderly conduct, resulting in:

(a) Injury to another person;

(b) Damage to property; or

(c) Imminent danger of injury to another person

or damage to property.

Fla. Stat. § 870.01(2).

Judge Walker in the Northern District agreed with the challengers, enjoining enforcement of the statute. Though the Eleventh Circuit expressed its own misgivings about the statute’s meaning and reach, it certified a series of questions about it to the Florida Supreme Court. And the Eleventh Circuit was satisfied with that court’s “definitive” interpretation, writing: "The touchstone of liability under the riot statute is violence. This violence may not be incidental; it must be intentional."

Seems right to me, given the statutory language. Opinion excerpted below.

Dream Defenders by John Byrne on Scribd

Hurricane Milton court update (UPDATED)

 From the SDFLA website (as of Tuesday afternoon):

In anticipation of Hurricane Milton, the below courthouses will be closed as follows:
• Ft. Pierce (Alto Lee Adams, Sr. U.S. Courthouse) will be closed Tuesday through Thursday
• Palm Beach (Paul G. Rogers Federal Building and U.S. Courthouse) will be closed Wednesday and Thursday
• Ft. Lauderdale (U.S. Federal Building and Courthouse) will be closed Wednesday and Thursday
• Miami (Wilkie D. Ferguson, Jr., C. Clyde Atkins, and James Lawrence King Courthouses) will be closed Wednesday and Thursday
• Key West (Sidney M. Aronovitz U.S. Courthouse) will be closed Wednesday

President Biden, it’s time to use your pardon power.

President Biden, it’s time to use your pardon power.

By David Oscar Markus

The federal criminal justice system is littered with terribly unjust convictions and sentences. The President of the United States has the power, granted to him by our Constitution, to fix these injustices – either by pardoning a person convicted of a federal crime or by commuting a sentence.  Unfortunately, President Biden has barely used that power to date.  Putting aside pardons for possession of marijuana, he has granted only 25 pardons and 131 commutations (which is less than 1.5 percent of all the petitions submitted to the pardon office to date).  And almost none of these are white collar offenses, which get very little attention for this sort of review.  

But it is not too late, Mr. President.  Traditionally, most presidents wait until the final few months of their presidency to use the wide power and discretion afforded them.  Here are some cases that cry out for the President's intervention:

The first case, United States v. John Moore and Tanner Mansell, is the ideal candidate for a pardon.  Moore and Mansell were crewmembers on a boat that facilitated shark encounters in South Florida.  During one such trip, they spotted sharks caught on a long fishing line that they mistakenly believed was illegal. They recorded as they retrieved the line and released the sharks, and called Fish & Wildlife to notify law enforcement of what they had found.  It turns out that the lines had been placed lawfully, an unusual circumstance. Despite that this was a good faith mistake, Moore and Mansell were indicted and convicted for theft of property within the special maritime jurisdiction of the United States, in violation of 18 U.S.C. 661.  The appellate court affirmed the conviction, but Judge Lagoa said she did so "with reluctance" because she had never seen "in eighteen years on the bench and three years as a federal prosecutor," facts like these.  She said that the prosecution "def[ied] understanding" and that the prosecutor took "a page out of Inspector Javert's playbook" for prosecuting this case.  She said the facts "plainly suggest[] a good faith mistake" and she could not understand how "this case was worth the public expense of a criminal prosecution, and the lifelong yokes of felony convictions."   

The next two cases are perfect for clemency.  In United States v. Tyson Rhame, James Shaw, and Frank Bell, the defendants were charged with fraud for selling the Iraqi currency, called dinar (an entirely legal product).  It was undisputed that every single customer got exactly what they paid for and that not one of the thousands of customers ever complained.  In fact, the dinar is worth today almost the same amount it was worth when customers purchased it years ago.  In other words, they did not lose anything.  The defendants themselves did not say anything fraudulent to any of the customers and they spent millions of dollars on compliance to make sure that they did not cross any legal lines.  Even the judge at trial said, "Let me put it this way: I don't know where this case is going to end up ... Well for one thing, I'm not prepared to even say, well this case is going to get past directed verdict.  These people can be found completely not guilty."  Unfortunately, the jury found them guilty. Ty Rhame  -- an Iraqi war hero, has donated tens of millions to charity, always paid his taxes, and is a loving father -- was sentenced to 15 years (!!) in federal prison for selling a legal product that is still openly sold today.  

In United States v. Johnny Grobman, Raoul Doekhie, and Sherida Nabi, the defendants bought baby formula from manufacturers saying on the basis that they would sell only in foreign markets, but they actually sold in the United States. The “victims” in this case, primarily very large corporations, made a profit from their sales to the defendants.  Their complaint is that they did not make as much money as they would have had they marked it up to be resold in the U.S. Based on the premise that these corporations may have been able to make more profit from these transactions, Grobman, a father to three young daughters, was sentenced to 18 years in federal prison even though he was a first time non-violent offender.  18 years!  A co-conspirator in Johnny’s case who did not go to trial and cooperated with the prosecution received a sentence of 2 years. 

 I am particularly attuned to the facts of Rhame and Grobman since I represent both of them on appeal (I was not the trial lawyer).  I could go on and on with other cases that President Biden should look after.  Another one of my clients who is currently appealing, Neil Cole, was acquitted of conspiracy to commit securities fraud in the Southern District of New York, which was the top and most serious count.  The jury was unable to reach a verdict on the less serious counts, but the government decided to retry him anyway on the very same theory that the jury rejected for the conspiracy.  It's hard to beat the government once; it's almost impossible to beat the feds twice, especially where the government scares away defense witnesses with threats of perjury and obstruction.  

Many presidents issue a few pardons and commutations at the end of the their term to show at least a little mercy.  But President Biden has the opportunity do something truly special and unique -- clear the board of the many unjust convictions and sentences in our federal system.  Don't be stingy, President Biden.  Don't succumb to fear.  Do the right thing and make our criminal justice system just a little more fair.

False Claims Act Unconstitutional, says Middle District Judge. (Guess who).

If you guessed Judge Mizelle, bingo!

It's a fascinating read.

And she may very well be right.

Here's Reuters.

Over the last 20 years, the U.S. has routinely recovered upward of a billion dollars a year from False Claims Act lawsuits initiated by private whistleblowers who accuse defendants of defrauding the federal government. In 2023 alone, the U.S. took in more than $2.3 billion, opens new tab from hundreds of lawsuits initiated by private whistleblowers.

A federal judge in Tampa, Florida, ruled, opens new tab on Monday that these whistleblowers wield unconstitutional power. U.S. District Judge Kathryn Mizelle concluded that the whistleblower, or qui tam, provisions of the False Claims Act violate the Appointments Clause of Article II of the U.S. Constitution because whistleblowers exercise executive-branch power without accountability to the president.

Mizelle, a former clerk of U.S. Supreme Court Justice Clarence Thomas who was 33 years old when she was appointed by President Donald Trump in 2020, said False Claims Act whistleblowers are effectively acting as officers of the United States when they initiate and prosecute civil fraud lawsuits on behalf of the government.

And here's the (53 page) opinion.

FBA Installation

By John R. Byrne

The South Florida Chapter of the Federal Bar Association held its Installation on Saturday at The Four Seasons. Nice event. Judge Graham, forty years after being sworn in as president of the Chapter, swore in new president Courtney Cunningham.

Cathy Wade, former Executive Services Administrator for the Court, received the NED Award for her service to the federal bench and bar. Judges Bloom and Williams gave heartfelt (and funny) tributes to Wade, who began working for the Court in 1994.

No cooperating witness should ever be sentenced to more than 2 years again...

SDNY pretty much just set the ceiling on cooperating witnesses. Caroline Ellison was just sentenced to two years in prison and ordered to forfeit $11 billion.  That's billion with a B.  The crazy thing is that most of my NY friends that I spoke with are surprised she got any time as the culture there is for cooperating witnesses to get probation.  They were taken aback that she got two years.  

What's surprising to me is that Sam Bankman-Fried got 25 years.  Way too much time for a first time, non-violent offender where the actual loss was arguably zero.  I'm all for the NY system of cooperating witnesses getting no time (which is starting to catch on in other places).  But 25 years for going to trial needs to be fixed. 

He has a number of really good issues on appeal, including that the judge forced him to testify out of the presence of the jury before taking the stand so that the judge could determine whether his testimony would be admissible.  Pretty insane.

If you were the sentencing judge, what would your sentence be for SBF and Ellison?