#winning

Gene Stearns is at it again, this time winning the Bank Atlantic case on appeal in the 11th Circuit. The court ordered a new trial after a 6-week trial. It's a significant win (but an unpublished opinion) and one that Gene predicted from the beginning.  The conclusion:

Accordingly, we reverse the district court’s grant of summary judgment with respect to the falsity finding of Levan’s Earnings Call statements and the affirmative defense of reliance-on-professional-advice. We affirm the district court’s rejection of judgment as a matter of law with respect to the accounting fraud and its pre-trial evidentiary rulings regarding the testimony of the SEC’s expert, Lynn Turner, and PwC’s 2012 look back report. Because the reversal of partial summary judgment creates genuine issues of material fact that require resolution, we decline to enter judgment in favor of Defendants.

Another Johnson case leads to 3 opinions

This time it's United States v. Vail-Baron. Judge Rosenbaum writes the majority. Judge Jordan concurred. And visiting judge Eugene Siler (from the 6th) dissents. Judge Rosenbaum starts off her opinion this way:

When I was growing up, my parents told me not to judge a book by its cover. The Supreme Court has expressed an analogous concern about concluding that a crime qualifies as a violent crime under the Armed Career Criminal Act (“ACCA”), based solely on the name of the crime. See Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s offense of “rioting at a correctional institution,” a crime that the Supreme Court characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony battery—a crime that, from its name, may sound like a crime of violence—actually satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing Guidelines when it is committed by mere touching. Heeding the Supreme Court’s warning, we have carefully compared the elements of felony battery under Florida law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not qualify as a “crime of violence” under § 2L1.2 when it is committed by mere touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.

"A very against police judge."

That was The Donald last night during the debate when discussing stop & frisk:



We didn't get any questions on the Supreme Court though...

Instead we got quite a bit of sniffles. I would have felt bad for him had he not been attacking Hillary's health for the past 3 weeks:



OK, OK... enough of that. The highlight of the night was Dee Gordon. I could watch this over and over again:

Will tonight's debate feature UFOs?

What was that percentage?!?!

I like this moment when Bill defends Hillary.




Should be fun tonight.

Justice Federico Moreno?

Former Chief Judge of the SDFLA, Federico Moreno, has made Donald Trump's short-list for Supreme Court Justices.  I love it.  Judge Moreno, who has been a district judge since 1990, would make a fantastic Justice.  He's smart, witty, engaging, and an all around good guy. 

He would be the first Supreme Court Justice to be a:

• Floridian
• Venezuelan
• former practicing criminal defense lawyer
• former assistant federal defender
• UM law grad

He's also been a state court judge and a practicing lawyer.  He currently serves on the Executive Committee of the Courts. 

 Other notables on the list include Charles Canady, a current Florida Supreme Court Justice.

Is flight from the police = reasonable suspicion or consciousness of guilt?

Many courts have said yes over the years. See Illinois v. Wardlow, 528 U.S. 119 (2000).


But the Supreme Court of Massachusetts has rightfully come out the other way in light of recent encounters between black men and the police:

Second, as set out by one of the dissenting Justices in the
Appeals court opinion, where the suspect is a black male stopped
by the police on the streets of Boston, the analysis of flight
as a factor in the reasonable suspicion calculus cannot be
divorced from the findings in a recent Boston Police Department
(department) report documenting a pattern of racial profiling of
black males in the city of Boston. Warren, 87 Mass. App. Ct. at
495 n.18 (Agnes. J., dissenting), citing Boston Police
Commissioner Announces Field Interrogation and Observation (FIO)
Study Results, http://bpdnews.com/news/2014/10/8/boston-policecommissioner-
announces-field-interrogation-and-observation-fiostudy-
results [https://perma.cc/H9RJ-RHNB].13 According to the
study, based on FIO data collected by the department,14 black men
in the city of Boston were more likely to be targeted for
police-civilian encounters such as stops, frisks, searches,
observations, and interrogations.15 Black men were also
disproportionally targeted for repeat police encounters.16 We do
not eliminate flight as a factor in the reasonable suspicion
analysis whenever a black male is the subject of an
investigatory stop. However, in such circumstances, flight is
not necessarily probative of a suspect's state of mind or
consciousness of guilt. Rather, the finding that black males in
Boston are disproportionately and repeatedly targeted for FIO
encounters suggests a reason for flight totally unrelated to
consciousness of guilt. Such an individual, when approached by
the police, might just as easily be motivated by the desire to
avoid the recurring indignity of being racially profiled as by
the desire to hide criminal activity. Given this reality for
black males in the city of Boston, a judge should, in
appropriate cases, consider the report's findings in weighing
flight as a factor in the reasonable suspicion calculus.
Here, we conclude that the police had far too little
information to support an individualized suspicion that the
defendant had committed the breaking and entering. As noted,
the police were handicapped from the start with only a vague
description of the perpetrators. Until the point when Carr
seized the defendant, the investigation failed to transform the
defendant from a random black male in dark clothing traveling
the streets of Roxbury on a cold December night into a suspect
in the crime of breaking and entering. Viewing the relevant
factors in totality, we cannot say that the whole is greater
than the sum of its parts.

"Any possibility of unfair prejudice was ameliorated when the district court explicitly instructed the Rhode Island jury not to hold Alcantara's wearing of a Yankees hat against him."

That was the First Circuit explaining why a New England jury could be fair in deciding whether a Yankee fan was guilty:

Alcantara's second claim of evidentiary error runs along
similar  lines.    He  argues  that  a  handful  of  references  to  his 
wearing a New York Yankees baseball cap prejudiced the jury (which
he assumes to have been composed of Boston Red Sox fans) against
him.  As an initial matter, all but two of the cited references
occurred  during  defense  counsel's  cross-examination.    In  any 
event,  this  testimony,  like  the  references  to  luxury  vehicles 
discussed  above,  was  relevant  to  the  witnesses'  knowledge  of 
Alcantara and his appearance.  Any possibility of unfair prejudice
was ameliorated when the district court explicitly instructed the
Rhode Island jury not to hold Alcantara's wearing of a Yankees hat
against him.

Should prosecutors experience one day in prison before taking the job?

These Maryland legislators did just that. They should be praised. They wanted to see what prison life was like so that they were more informed about the criminal justice laws they were proposing and voting on. Prosecutors routinely throw out numbers like 5 years, 10 years, or more, without even knowing what one day is like in prison.  Perhaps they should.

From the WP:

The conditions inside the facility were reminiscent of a prison movie: stale air, dim hallways, only the bare necessities. The prisoners described getting about an hour and a half of physical recreation per day, but, depending on where you fell in the lineup for the yard, that could be cut to 45 minutes. Prisoners are allowed outside recreation only four months of the year: June through September. The rest of the year, they are told, is too cold to go outside. Because of lengthy construction projects, some inmates had not been outside for recreation time in more than a year.

On a day when outside temperatures reached 100 degrees, we quickly realized that cellblocks in most state correctional facilities are not air conditioned. It’s so hot that inmates sleep on the floor with their feet in toilet water. Rats infested the food and gnawed through walls.