Free Brittney

By Michael Caruso

In 1972—50 years ago—President Nixon made his historic visit to China in February, The Grateful Dead conquered Europe in April and May, Hunter S. Thompson published his novel Fear and Loathing in Las Vegas in July, and, of course, your Miami Dolphins went undefeated later in the year among other cultural milestones. And, despite our country withdrawing from Vietnam, 759 Americans died there in 1972.

1972 also saw the passage of monumental bipartisan legislation. On June 23, 1972, President Nixon signed Title IX, the law best known for promoting gender equity in athletics and preventing sexual harassment on campuses. These are Title IX's 37 words: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The law's impact—opening doors and removing barriers for girls and women—cannot be overstated.

For context, in 1970, just 59% of women in our country graduated from high school, and just 8% had college degrees. And there were just over 300,000 women and girls playing college and high school sports in the United States. Today that number exceeds 3.6 million.

The impact of Title IX stretches into professional sports as well. More opportunities have emerged for young women to turn their sport into their careers, particularly in the WNBA.

One such woman is Brittney Griner. Ms. Griner plays for the Phoenix Mercury in the WNBA. Like many WNBA players, she also plays overseas during the offseason. For the last few seasons, Ms. Griner has played for a team in the Russian league. On the eve of Russia's invasion of Ukraine, Ms. Griner was arrested at a Moscow airport. Russian authorities claimed she had hashish vaporizer cartridges in her luggage and accused her of smuggling significant amounts of a narcotic substance, an offense punishable by up to 10 years in prison. Curiously, Russian authorities only announced her arrest after the invasion occurred.

Russia has detained Ms. Griner since her arrest. The U.S. State Department has classified Ms. Griner as “wrongfully detained,” which sparked a growing movement for the player’s release led by her wife, Cherelle Griner. Her "trial" is scheduled to start this Friday.

But we'll see. Brian Whitmore, a nonresident senior fellow at the Atlantic Council’s Eurasia Center and an assistant professor at the University of Texas Arlington, characterized Griner’s detainment as “a hostage situation” and her trial as an exercise in “political theater” designed to pressure the U.S. government into a prisoner swap. “They want to trade her,” Whitmore said, “and they’re going to drag this out until they get something they want.”

Multiple state-owned Russian news outlets reported that Russia would be open to swapping arms dealer Viktor Bout for Ms. Griner. Russia’s seemingly lopsided asking price complicates negotiations. In 2001, a jury convicted Bout of conspiring to kill U.S. nationals and officers, and the U.S. asserts that the convicted arms dealer smuggled military-grade weapons to rogue leaders and insurgent groups, elevating conflicts from machetes and one-shot rifles to grenade launchers and AK-47s. While as noted above, Ms. Griner allegedly had a few vape cartridges in her luggage.

As we all celebrate and enjoy this holiday weekend, let's keep all our loved ones who are suffering in our thoughts and prayers, and let's all hope for Ms. Griner's speedy release. And watch a WNBA game.

SCOTUS reverses CA11 on two criminal cases

1. The 11th Circuit was an outlier on the First Step Act, holding that courts could not consider intervening changes of law or fact in exercising their discretion to reduce a sentence.  The Supreme Court reversed, 5-4, per Justice Sotomayor (joined by Kagan, Breyer, Thomas, and Gorsuch).  The opinion starts this way:

There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her “as an individual.” Koon v. United States, 518 U. S. 81, 113 (1996). In line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence used” to craft appropriate sentences. Williams v. New York, 337 U. S. 241, 246 (1949). When a defendant appears for sentencing, the sentencing court considers the defendant on that day, not on the date of his offense or the date of his conviction. Pepper v. United States, 562 U. S. 476, 492 (2011). Similarly, when a defendant’s sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant’s conduct and changes in the Federal Sentencing Guidelines since the original sentencing. Ibid.
Congress enacted the First Step Act of 2018 against that backdrop. The First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of certain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes tothe Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion.
The Court holds that they may. It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained. Nothing in the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.
The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening changes of law and fact supported his motion, erroneously believing that it did not have the discretion to do so, and the Court of Appeals affirmed. The Court now reverses.

2.  The 11th was also an outlier on whether doctors could in good faith prescribe medications. It held in United States v. Ruan, 966 F.3d 1101, 1120 that a subjective believe that a doctor is meeting a patient's medical needs is not a complete defense and that the doctor must also meet an objective standard.  The Supreme Court reversed 9-0 per Justice Breyer:

Finally, the Government argues that requiring it to prove that a doctor knowingly or intentionally acted not as authorized will allow bad-apple doctors to escape liability by claiming idiosyncratic views about their prescribing authority. See, e.g., Brief for United States 33. This kind of argument, however, can be made in many cases imposing scienter requirements, and we have often rejected it on bases similar to those we have set forth in Part II of this opinion. See, e.g., Rehaif, 588 U. S., at ___ (slip op., at 8); Liparota, 471 U. S., at 433–434.
We do the same here. The Government, of course, can prove knowledge of a lack of authorization through circumstantial evidence. See ibid. And the regulation defining the scope of a doctor’s prescribing authority does so by reference to objective criteria such as “legitimate medical purpose” and “usual course” of “professional practice.” 21 CFR §1306.04(a); see Gonzales, 546 U. S., at 285 (Scalia, J., dissenting) (“The use of the word ‘legitimate’ connotes an objective standard of ‘medicine’”); Moore, 423 U. S., at 141– 142 (describing Congress’ intent “to confine authorizedmedical practice within accepted limits” (emphasis added)).As we have said before, “the more unreasonable” a defendant’s “asserted beliefs or misunderstandings are,” especially as measured against objective criteria, “the morelikely the jury . . . will find that the Government has carried its burden of proving knowledge.” Cheek v. United States, 498 U. S. 192, 203–204 (1991). But the Government must still carry this burden. And for purposes of a criminal conviction under §841, this requires proving that a defendant knew or intended that his or her conduct was unauthorized. 

See, judges on the 11th Circuit, it's OK to rule for criminal defendants.  You don't ALWAYS have to rule for the government.

Will Dobbs lead to the undoing of other rights?

 We've all read Justice Thomas' concurrence in Dobbs by now and it's pretty frightening.  Not only is it way out of touch with our country, our society, and the world -- it threatens to put people in jail for basic things like obtaining contraception.  Hard to imagine...

David Lat wrote this piece at Esquire about whether this will actually happen.  Here's a snippet on why he thinks it won't:

Why isn’t there the same hunger on the right to ban, say, interracial or same-sex marriage that there is for banning abortion? As Justice Alito wrote in Dobbs, the critical difference between abortion and most other rights is that abortion destroys “potential life” or “the life of an ‘unborn human being.’” Or as pro-life advocate Karen Swallow Prior wrote in the New York Times on Friday, she and her fellow pro-lifers believe “that abortion unjustly ends the life of a being that is fully human”—which can’t be said of almost any other right.

In other words, while social conservatives might not view my marriage to another man as a real marriage, they don’t view me and my husband as murderers. In the eyes of social conservatives, abortion is uniquely evil—and Roe, by enshrining that perceived evil in constitutional law, is a uniquely bad decision. According to UC Berkeley law professor Orin Kerr in a thoughtful Twitter thread, “Within the conservative legal movement, Roe is thought to stand pretty much alone.”

For decades, Republican political candidates, including presidential candidates, ran on getting Roe overturned. For just as long, a slew of pro-life organizations devoted themselves to getting Roe overruled. I’m unaware of presidential candidates campaigning on reversing Obergefell v. Hodges, the 2015 decision that recognized the right to same-sex marriage, or of organizations trying to revisit Griswold v. Connecticut, the 1965 decision that recognized the right of married persons to buy and use contraception.

 More:

I think it’s unlikely. First, because Justice Thomas wrote this in a separate concurrence, not in the controlling opinion of the Court, it represents only the views—the academic ramblings, really—of Justice Thomas. He’s fond of floating esoteric or controversial legal theories in solo concurrences, joined by none of his colleagues. And most of the time, they go nowhere. If he actually wants to get these cases “reconsidered,” he’ll need four other votes, which he almost certainly doesn’t have.

Second, contrary to the claims of many commentators, Justice Thomas wasn’t actually arguing for getting rid of all legal protection for contraception, same-sex marriage, and similar rights. Rather, he was calling for reconsidering the legal doctrine called “substantive due process,” which claims that the Constitution’s protection of “due process” doesn’t just guarantee proper “process” (like a fair trial), but also certain “substantive” rights not mentioned in the Constitution (like abortion). Many legal conservatives loathe substantive due process because they believe it gives unelected judges too much power to make up new rights.

But as Justice Thomas explained in his concurrence, if the Court were to heed his call to ditch substantive due process, the question would then become “whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” So various rights currently protected under substantive due process might still be protected by the “privileges or immunities” doctrine, mentioned by Justice Thomas, or other doctrines or provisions not mentioned by him, such as the Equal Protection Clause.

Third, even if a Supreme Court precedent protecting a certain right gets overruled, the right doesn’t go away overnight; it just gets decided by other institutions, usually state legislatures or the U.S. Congress. As Justice Brett Kavanaugh wrote in his own Dobbs concurrence, “the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.”

This is why I’m not as worried as many about the future implications of Dobbs, in terms of either Justice Alito’s opinion for the Court or Justice Thomas’s concurrence. Then again, I might be wrong—and it wouldn’t be the first time. In 2018 and again in 2021, I predicted that Roe would not be overruled. So much for that.

I just expressed skepticism toward Justice Thomas’s solo concurrences, which are often like the mutterings of your crazy uncle at Thanksgiving. You can safely ignore your crazy uncle—but you can’t ignore Justice Thomas, since every now and then, he turns out to be crazy prophetic.

In 1997, in a case called Printz v. United States, Justice Thomas wrote a solo concurrence suggesting that the Second Amendment protected an individual right to keep and bear arms. At the time, this was contrary to Supreme Court precedent, and his view was dismissed by many as kooky. But eleven years later, in D.C. v. Heller, Justice Thomas’s once-fringe view became the law of the land.

Then this past Thursday, in New York State Rifle & Pistol Association, Inc. v. Bruen, Justice Thomas wrote for the Court in extending the reasoning of Heller, which focused on keeping guns for self-defense at home, to the carrying of firearms in public. So sometimes Justice Thomas’s improbable theories wind up getting enshrined in law, even if it takes a few years. And the current Court is far more conservative than it was when it decided Printz, perhaps making Thomas a better barometer today of where the Court might go in the future.

To those worried about post-Dobbs America: don’t panic, but don’t let down your guard. Go out there and win some elections—which is the only way to bring change to the Court, and to the country.

 

Supreme Court Overturns Roe v. Wade

By John R. Byrne

This is a big one. Vote was 6-3. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Justice Alito's opinion. Justice Roberts did not join the opinion but agreed with the result. He filed a separate opinion.

Scotus blogger Amy Howe discusses the likely effects of the ruling here.

"Head of Miami FBI office Piro retires; Bid-rigging probe of Broward Sheriff Tony returns to Miami"

 That's the title of an interesting article by Florida Bulldog.  The intro by Dan Christensen:

Miami FBI Special Agent in Charge George Piro is retiring, after sources say he was shown the door by FBI headquarters in Washington following a complaint by a subordinate that Piro improperly transferred his office’s bid-rigging investigation of Broward Sheriff Gregory Tony to South Carolina.

Piro’s last day in the office is said to be today, June 17, but he will officially depart June 30. The 23-year FBI veteran was named special agent in charge in November 2018. He also served as head of the Miami office from 2014-2017. In between, he was assistant director of the International Operations Division at FBI headquarters.

Phone and email messages seeking comment from Piro and FBI spokesman Mike Leverock over two days were not returned. The FBI national press office did not respond to an emailed request for comment before publication.

One source said that at a meeting with his agents last year, Piro explained transferring the Tony investigation by making two points: that he was not going to be responsible for the arrest of Broward’s first black sheriff, and that such an arrest would ruin the FBI’s relationship with the sheriff’s office, with which it frequently works.

Piro, who interrogated Iraqi dictator Saddam Hussein, also mentioned in the meeting that Sheriff Tony was responsible for sending $50,000 each to the families of two FBI agents who were killed while serving a search warrant at a Sunrise apartment on Feb. 2, 2021, the source said.

En banc happenings

On Tuesday morning, the 11th Circuit will hear three cases en banc.  Two criminal cases and one false claims case.

Notably, the panel ruled for the government in each of the three cases. 

I get on the 11th Circuit a lot, and one of my complaints is that the court almost never grants en banc review when the government prevails.  So this is nice to see.  

 I didn't find any of the panel decisions earth shattering, but here they are in case you are interested:    

• 19-14650 United States, Appellant v. Julian Garcon

• 19-13776 United States v. Brandon Dupree, Appellant

• 20-10604 United States, et al. v. Murray Farmer, et al., Appellants
  

 

Varsity Blues cases show why our criminal justice system is broken

The Varsity Blues prosecutions is a pretty good representative sample of how our criminal justice system operates.

57 defendants were indicted.

54 pleaded guilty (95%).

3 went to trial (5%).

1 was acquitted (1.75%).

Those numbers very closely track the national averages on federal cases, where about 97% of defendants plead guilty.

You'll be shocked to learn that the two defendants who went to trial and lost received the longest sentences in the case.

Some of the defendants with the best chances of acquittal pleaded guilty and either received no jail time or a few weeks of jail.  There is no question that if some of those defendants had gone to trial, some of them would have been acquitted.  But they saw the risks as too great.

The federal prosecutors who brought these cases are out there saying that winning 56 of 57 cases shows that the cases were righteous.  

But let's assume that 20% of cases went to trial and that more than a third of those were acquitted (to track the numbers that existed in this country pre-sentencing guidelines).  Would the government still be patting itself on the back?

The two defendants who lost at trial are appealing their sentences.  The appellate court will be faced with the question of whether cheating to get into college should be a federal crime.  It's an important question; however, it will be much tougher for the appellate court to reverse where almost everyone has pleaded guilty (for fear of the trial tax).  

Had more defendants challenged their cases and had done so earlier, perhaps the whole investigation would have been shut down as some would certainly have won at trial and perhaps those that lost would have won on appeal.  

Our criminal justice system was built on trials.  On forcing the government to actually prove beyond a reasonable doubt a righteous case.  Not on coercing folks to plead guilty. 

Roy Black gets acquittal in Boston federal court in Varsity Blues case

 Yes for the 3-0-5!  The only acquittal from the Varsity Blues case... this is why more cases need to go to trial.  Almost every single one of the VB cases pleaded out.  People were too afraid of the trial tax.  But there's no tax for an acquittal! Congrats to Roy, Howard, Maria, and Jackie.

From Law360:

A Boston federal jury on Wednesday acquitted a Massachusetts businessman on charges he bribed his daughter's way into Georgetown University through illicit payments to the elite school's tennis coach, upending the government's clean record of convictions in the "Varsity Blues" investigation.

Amin Khoury was found not guilty of participating in a mail fraud conspiracy and bribery scheme for paying $180,000 to former Georgetown coach Gordon Ernst through a middleman, who also received $20,000. Prosecutors said that in exchange, Ernst marked Khoury's daughter, Katherine Khoury, as a recruit to the elite Division I school.

Khoury embraced his legal team after the jury and judge left the room.

The weeklong trial featured evidence that Khoury attended a Memorial Day weekend reunion at Brown University, resulting in an agreement that he would pay Ernst for the recruiting slot.

The alleged middleman in the scheme, Tim Donovan, testified that he met up on Cape Cod with Khoury, who gave him a paper bag filled with $180,000 in crisp bills.

Khoury's defense attorney, Roy Black of Black Srebnick PA, hammered Donovan, who testified under an immunity deal with prosecutors, suggesting he was only saying what the government wanted him to say in order to dodge liability for allegedly not paying taxes on cash fees he took for helping high school tennis players get recruited into colleges.

"It's made up by Tim Donovan as part of his scheme to get immunity," Black said during closing arguments. "Katherine Khoury got into school on her own with the help of her father's best friend from Brown as it was disclosed to the school."

Assistant U.S. Attorney Kristen Kearney, at closing, leaned into the image — offered by Donovan — of the paper shopping bag filled with $180,000 in cash that Khoury allegedly slid across a table to him.

"Brown paper shopping bag of cash," she told the jury Tuesday. "It's not some imaginary evidence the defense is asking you to conjure. It's the actual evidence in front of you. This case is not complicated. The defense had thrown a lot at you to distract you from the simple fact they cannot dispute."