Suggested changes for the new U.S. Attorney

 Hayden O'Byrne takes over an office that has the lowest morale that I have seen since I started working down here.  And monster problems permeate the entire culture of 99 building.  Some suggestions for the office below.  Please add others to the comments:

1.    Stop bringing the low level drug and gun state cases.  Leave those to the state system.  Focus on the large scale cases that the feds were traditionally known for.

2.    Give your line prosecutors more discretion to do the right thing.  Let them work out deals to pretrial diversion, minor role, lower loss, etc., without having to get 8 levels of approval.  

3.    See #2 when it comes to variances.  Give line prosecutors the ability to agree to variances.

4.    Make yourself and your senior staff available to defense counsel to discuss cases.

5.    Open file discovery.

6.    Early Jencks.

7.    Stop filing motions in limine to preclude the defense from defending their clients.

8.    Stop filing motions to reconsider when you lose a motion. 

9.    Stop assigning prosecutors who clerked for the judge to that judge's courtroom.

10.    Zero tolerance for prosecutors who engage in misconduct.

11.      What else?

Stranger in a strange land

Judge Ruiz just issued his formal order in United States v. Agresti, after last month certifying his intention to grant a new trial in the case of a doctor who was convicted of Medicare charges arising from his drug testing of sober home residents to prevent and detect relapse.  The Order offers a scathing rebuke of the government's star witness, sober home owner Kenneth Bailynson, who lied on the stand.  Judge Ruiz found that "[g]iven the crucial role Bailynson's testimony played during Agresti's trial, a new trial is warranted."  

Richard Klugh, with Jenny Wilson and Greg Rosenfeld, handled the case.  

The Order is a really entertaining read.  It starts off:

"The famed science-fiction writer Robert A. Heinlein once wrote that the 'slickest way in the world to lie is to tell the right amount of truth at the right time--and then shut up.'  The star witness in this case, Kenneth Bailynson, might have been wise to follow Heinlein's advice---instead, he forgot to shut up."  

The order details how Bailynson "weaved lies with truths" in "crafting a narrative that pitted his word against Agresti's," and went further to "ensure[ ] that the only person who could pull a thread out of the intricately woven tapestry was dead."  Even the government at one point admitted that without Bailynson, there was no chance of a conviction. 

As Judge Ruiz writes, "Agresti was put on the defensive--having to rebut a story for which there was no proof beyond Bailynson's testimony."  Bailynson's perjury led to Agresti's conviction. After the conviction, Bailynson admitted he lied--but then he shifted gears again and said he lied about lying.  At one point he admitted that he preferred to be seen "in the public eye as a liar and a perjurer" rather than a "rat, snitch and government informant."  

In granting the new trial motion, Judge Ruiz rejected the government's arguments that Bailynson's post-trial statements were "merely impeaching because the Defendant would have been convicted even had the jury heard them at trial and discounted Bailynson's testimony," and that the lies did not amount to perjury because Bailynson "retract[ed] his recantation" of his testimony.  "[T]he Government's attempt to create separation between a motion for new trial when based on a retracted recantation as compared to perjury is misleading--at best," Judge Ruiz wrote, finding that the lies were perjury and that the evidence of perjury was material and more than merely impeaching or cumulative.   As Judge Ruiz pointed out: "it is one thing to call someone a liar and quite another to know someone is a liar."  

Kudos to Judge Ruiz for doing the right thing and doing so in such a thorough and fun order.

Interim? (UPDATED)

Apparently there is some controversy over at the U.S. Attorney's Office.  Hayden O'Byrne has been appointed as "interim" U.S. Attorney.  That title should stick for 120 days pending approval by the district court.  And it's possible that eventually he will be the U.S. Attorney, but there is some jockeying for that position by a number of folks.

But according to multiple sources, he has instructed the office to remove the word "interim" from pleadings.   In fact, you can see his signature block on this notice dropping the prosecution against Trump co-defendants in the documents case: 

 

JUST IN: The Justice Department is moving to drop special counsel Jack Smith's case against Trump allies Walt Nauta and Carlos DeOliveira, the last vestiges of Smith's Trump cases. pic.twitter.com/4IKJoJ6KuU

— Kyle Cheney (@kyledcheney) January 29, 2025

Jay Weaver has more details about that dismissal here.

UPDATED -- in response to this post, a number of sources tell me that O'Byrne is in fact the U.S. Attorney and that he is not "acting" or "interim."  

DOJ fires prosecutors who investigated Trump, including local AUSA Mike Thakur (UPDATED -- & AUSA Anne McNamara too)

The media has covered DOJ's firing of prosecutors and officials involved in the Trump investigations.  For example, here's a CNN article:

More than a dozen officials who worked on the criminal investigations into Donald Trump have been fired, according to sources familiar with the matter.

A letter from acting Attorney General James McHenry to the officials said they cannot be “trusted” to “faithfully” implement Trump’s agenda.

“You played a significant role in prosecuting President Trump. The proper functioning of government critically depends on the trust superior officials place in their subordinates,” McHenry wrote. “Given your significant role in prosecuting the President, I do not believe that the leadership of the Department can trust you to assist in implementing the President’s agenda faithfully.”

The firings come as the the Trump administration is taking concrete steps to investigate prosecutors who oversaw the criminal cases against January 6 defendants after Trump vowed to seek retribution as a key pledge of his campaign, according to multiple sources who have seen an internal memo on the matter.

Ed Martin, the interim US attorney in Washington, DC, has launched an investigation into prosecutors who brought obstruction charges under US Code 1512(c) against some rioters that were ultimately tossed because of a Supreme Court decision last summer.

Here in SDFLA, home of the documents case, DOJ fired AUSA Michael Thakur who worked on the case. According to multiple sources, Thakur was escorted out of the office without notice by two court security officers.  He was not permitted to clean his office out.  According to one tipster, he was "frog-walked" out of the office.  Apparently this was done before Hayden O'Byrne was named Interim USA.  

UPDATED -- AUSA Anne McNamara was also fired.  

SECOND UPDATE -- Jay Weaver covers the story here.

Breaking-- Trump names acting US Attorney

 Hayden O'Byrne is Acting USA.

He's been an AUSA for a while and is a long time member of the Federalist Society. 

Congrats to Mr. O'Byrne. You have a lot of work to do!

STOP THE PRESSES -- Justice Alito rules for criminal defendant in habeas case

 I've been pretty outspoken that Justice Alito is the least friendly Justice to criminal defendants. (We miss Justice Scalia!)  But last week, Alito ruled for the defense in a habeas case.  The 7-2 majority starts of like this:

An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death. The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause. The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By the time of Andrew’s trial, this Court had made clear that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.

Justice Alito concurred:

I concur in the judgment because our case law establishes that a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair. See Payne v. Tennessee, 501 U. S. 808, 825 (1991); Romano v. Oklahoma, 512 U. S. 1, 12 (1994); cf. Rideau v. Louisiana, 373 U. S. 723, 726 (1963). I express no view on whether that very high standard is met here.

 It was a 10th Circuit case, so Gorsuch joined Justice Thomas' dissent.

So you want to be a magistrate judge?

 Applications can be found here and are due February 23.

Here is the committee that will be making recommendations to the district court:

The members of the Federal Magistrate Judge Merit Selection Panel are as follows:  

Chair:  Ryan Ulloa, Esq.    

Members:  Jodi Avila, Esq. Sowmya Bharathi, Esq. Fabiana Cohen, Esq. Melanie Damian, Esq. Samuel Danon, Esq. Matthew Dates, Esq. Hector Dopico, FPD Wifredo Ferrer, Esq. Lindsey Lazopoulos Friedman, AUSA Sofia Gomez (non-attorney)  Francesca Nabors (non-attorney) Jonathan Osborne, Esq. Mark Pinkert, Esq. Evelyn Sheehan, Esq. 

Judge Cannon grants Trump's co-defendants' motion to preclude release of Documents Case Report

 From the introduction of the Order:

THIS CAUSE comes before the Court upon the Emergency Motion to Preclude Release of Volume II of Special Counsel’s Report (“Emergency Motion”), filed by Defendants Nauta and De Oliveira [ECF No. 679], as well as President-Elect Trump’s Motion to Intervene or Alternative Request to Participate as Amicus [ECF No. 681].1  As narrowed by the Court’s prior Order on Volume I, which has since been publicly released [ECF Nos. 697, 702], the Emergency Motion seeks to preclude the Department of Justice (“Department”)—prior to the conclusion of proceedings in this criminal action—from releasing a redacted version of Volume II of Special Counsel Smith’s Report for in camera review by the Chairmen and Ranking Members of the House and Senate Judiciary Committees [ECF No. 712].  Volume II contains voluminous and detailed Rule 16 discovery about the allegations in this criminal case, which remains pending on appeal as to Defendants Nauta and De Oliveira [ECF Nos. 672, 673].  See 11th Cir. Appeal No. 24-12311.2    Following a hearing and review of all relevant filings, including an in camera review of Volume II itself, Defendants’ Emergency Motion is GRANTED as to Volume II [ECF No. 679], and President-Elect Trump’s Motion to Intervene is DENIED WITHOUT PREJUDICE as to Volume II but granted as to the alternative, unopposed request to participate as amicus to challenge release of Volume II [ECF No. 681; ECF No. 710 p. 9; ECF No. 702 (denying motion to intervene as to Volume I)].