News and Notes (UPDATED)

1.  Congrats to the new Labor Secretary, Alex Acosta.  Great news.  Acosta got 60 votes, including Sen. Nelson.

2.  The Melgen jury is still out.  Today marks day 3 of deliberations.  Strong likelihood of a verdict today before the weekend.  After 7 weeks, they won't want to come back next week.

UPDATE -- Friday afternoon verdict -- GUILTY on all counts.

3. Federal agent acquitted of road rage, via the Sun-Sentinel.

4.  "The lipstick gang"?  Paula McMahon has the details:

Call them the gang that couldn’t put on lipstick straight.
When three men, wearing bright red lipstick, heavy makeup and women’s clothing, walked into a jewelry store and said they were shopping for an engagement ring earlier this month, workers quickly realized they were dealing with an unusual band of gun-toting robbers.
So far, authorities said they have identified two of the wanted men. Jerome Simmons, 29, of Fort Lauderdale, was arrested as he crawled out of a nearby bush sporting only his boxer shorts, socks, makeup and carrying a walkie-talkie in his hand. A pink sweatshirt, pink sweat pants, a wig and a pair of shoes were found under a nearby vehicle, police said.

Your government at oral argument

Have you ever had a judge (or Justice) respond to an argument by saying, "Oh, come on." (via the NY Times):

Chief Justice John G. Roberts Jr. tried to test the limits of the government’s position at a Supreme Court argument on Wednesday by confessing to a criminal offense.

“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” the chief justice said, adding that he had not been caught.

The form that people seeking American citizenship must complete, he added, asks whether the applicant had ever committed a criminal offense, however minor, even if there was no arrest.

“If I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all’?” Chief Justice Roberts asked.

Robert A. Parker, a Justice Department lawyer, said the offense had to be disclosed. Chief Justice Roberts seemed shocked. “Oh, come on,” he said.

Ouch.

Meantime, Alex Acosta will soon by in Trump's Cabinet.  Hopefully he won't be forced to make such silly arguments.

En banc 11th Circuit decides U.S. v. Roy

At long last, the en banc 11th Circuit today decided United States v. Roy.  The opinions span 287 pages.  Judge Carnes wrote the majority opinion, finding harmless error in conducting trial without counsel present during a portion of the trial.  From the conclusion:

We end, as we began, by acknowledging that although Alexander Roy received a fair trial he did not receive a perfect one. Whatever the circumstances surrounding it, and regardless of who knew what and when they knew it, we do not condone the taking of any inculpatory testimony in the absence of defense counsel. It is constitutional error, which should be avoided. But neither would we condone, much less participate in, scuttling the harmless error rule. As we have explained, the rule plays an important role in, and serves vital interests of, our judicial system. To reverse Roy’s conviction based on his counsel’s brief absence during initial presentation of only a small part of the overwhelming evidence against his client would require us to enlarge exceptions to the harmless error rule to the point where they would be large enough to consume much of the rule. Doing that would run counter to decisions of the Supreme Court, this Court, and the better reasoned decisions of other circuits.
The dissent expresses the view that “we must vigilantly ensure we are adhering to our obligation” and “commitment to the Constitution” where the defendant has committed “disturbing” crimes. Dissenting Op. at 257. And it espouses the view that the more disturbing the crimes the defendant committed the greater our obligation to adhere to the law because “the constitutional processes that the Framers put into place are there to protect everyone, including people accused of the gravest and most serious crimes.” Id. We disagree with any suggestion, if it be such, that someone charged with sexual crimes against minors is entitled to more constitutional protections than someone charged with kiting checks. The constitutional protections are the same for all regardless of their crimes.
We do agree, of course, that “[t]he Sixth Amendment guarantee of the right to counsel does not apply on a sliding scale based on the gravity of the defendant’s offense.” Id. at 258. But neither does the application of the harmless error rule vary inversely with the seriousness of the crime. Countless other convicted defendants whose trials were less than perfect have been denied automatic reversal and a presumption of prejudice. This defendant, although he is entitled to the full protections of the law, is not entitled to special treatment. Because the Sixth Amendment violation that occurred during his trial was harmless beyond a reasonable doubt, his conviction is due to be affirmed.
The judgment of the district court is AFFIRMED.

 Judges Tjoflat, Pryor, Jordan, and Rosenbaum each filed concurring opinions.

Judges Wilson, Martin, and Pryor each filed dissenting opinions.

More to follow...

Mistakes or Fraud?

The issue has been framed as "mistakes vs. fraud" in the Melgen trial, which is now with the jury.  From the PBP:

Acknowledging Dr. Salomon Melgen made some mistakes as he struggled to treat more than 100 patients a day at clinics from Delray Beach to Port St. Lucie, his attorney spent more than three hours Tuesday trying to overcome what federal prosecutors called “staggering” evidence that the ophthalmologist bilked Medicare out of as much as $105 million.

The 62-year-old Harvard-educated retinal specialist should not be found guilty of 76 charges of health care fraud for sloppy record-keeping, attorney Matthew Menchel told a federal jury in closing arguments. Further, he said, the doctor shouldn’t be sent to prison for trying innovative measures to help patients who were told their vision loss was hopeless.

While nationally renowned ophthalmologists testified during the nearly two-month trial that they were appalled by Melgen’s methods, Menchel insisted they had “agendas.” The people the jury should listen to are the patients, he said.

“It’s the patients who are experts in blindness,” Menchel said “It’s the patients, not the doctors, who are experts.”

Patients who testified — both for and against the wealthy physician who faces corruption charges in New Jersey with Democratic U.S. Sen. Robert Menendez — didn’t hold any animosity toward Melgen, he said. “Patients smiled warmly at him for a reason,” he said.

The reason, Assistant U.S. Attorney Roger Stefin countered, was that they that they had no idea he was using them as “props” to rake in millions from the federal insurer.

“He wasn’t just aggressive,” Stefin said, using Menchel’s word for Melgen’s tactics. “He was abusive. He took advantage of patients in many cases — people who were elderly, people who were sick, people who were trusting.”

Melgen subjected patients — some who had prosthetic, blind or shrunken eyes — to dozens of unnecessary and sometimes painful tests to “line his pockets with millions and millions of dollars,” agreed fellow Assistant U.S. Attorney Alexandra Chase.

Gotta love this story

Justice Breyer's cell phone went off in Court today. Of course it's no big deal and things happen.  But can you imagine if that happened to a lawyer instead of a judge.  Woah, the sky would fall.  Here's the WP on the incident:

Some questions about today’s incident remain unanswered. Breyer’s ringtone was not the usual sounding one, but reporters couldn’t make out exactly what it was. And it is unclear whether a justice’s black robe has pockets.

In local courts, the Melgan trial is wrapping up with closings today. 

Federalists and privacy

The Federalist Society will be discussing cell tower data and privacy this Friday.  I will be debating the Florida Solicitor General, Amit Agarwal, who was my opponent in the en banc cell tower case of U.S. v. Quartavious Davis.  It's being moderated by Judge Raag Singhal.  Should be fun:

How many innocent people are in federal prison?

Ninth Circuit Judge Alex Kozinski told 60 Minutes that about 1% or over 20,000 innocent people are in federal prison.  "That's a lot of people!" The number is almost definitely higher and yet many federal judges aren't doing as much as Kozinski to check the executive.  And boy do we need a strong judiciary right now with AG Sessions.

We should have our U.S. Attorney nominee this week.  It will be interesting to see if that person is willing to stand up to Trump/Sessions or whether they will go back to the old ways where there is limited discovery, no exhibit lists, etc. etc.

It appears that in the Ft. Lauderdale shooting case that the prosecution is handing over all of the evidence.  From Paula McMahon:

 Prosecutors handling the case against a man accused of fatally shooting five people and wounding six others at Fort Lauderdale’s international airport are still turning over massive amounts of evidence to the defense, they said in court on Friday.
In the coming weeks, they plan to hand over electronic evidence from computers and phones used by Esteban Santiago before the Jan. 6 mass shooting.
Both sides said they are still interviewing numerous potential witnesses who may have information about the shooting and Santiago’s state of mind.
The defense team, from the Federal Public Defender’s office, said Santiago, 27, is continuing to take medication for schizophrenia and schizoaffective disorder. They said his condition appears to have stabilized and he remains legally competent to stand trial.

It also appears that Haitian coup leader Guy Philippe will plead guilty today.

Dave Barry to speak at the District's Bench & Bar conference

It looks like a good conference, with lots of our judges speaking and participating. It's Friday May 12 and there are interesting panels. It should be revealing to hear what the judges have to say about topics like criminal sentencing and legal writing. And Dave Barry is always great.