11th Circuit in 2-1 decision saves Rick Scott on clemency decision for now (with UPDATE on make-up of 11th Circuit)

Last week, Judge Marcus wrote this opinion (joined by William Pryor) backing Gov. Scott on the process for convicted felons who have served their time to be re-enfranchised. Judge Beverly Martin dissented. The AP summarizes here:

With time running out, a federal appeals court late Wednesday sided with Florida in an escalating battle over the state’s process for restoring voting rights for former prisoners.

U.S. District Judge Mark Walker had given Florida until Thursday to create a new process after ruling in February that the state’s current system is unconstitutional and arbitrary, with decisions possibly swayed by politics and racial factors.

But a three judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals blocked Walker’s ruling while it considers an appeal from Gov. Rick Scott and other Florida Republican officials.
***
Walker’s ruling had kept the ban intact, but he had challenged the current system that requires a former prisoner to wait between five and seven years before they can even ask to have their voting rights back. The governor and the three elected Cabinet members then decide each request individually, subject to the governor’s unilateral veto.

It wasn’t always this way. Shortly after taking office in 2007, then-Republican Gov. Charlie Crist convinced two of the state’s three Cabinet members to approve rules allowing the parole commission to restore voting rights for nonviolent felons without hearings, and ultimately more than 100,000 felons were allowed to vote again.

Scott and state officials changed the process in 2011, and since then fewer than 3,000 have had their rights restored. The governor has defended the change, saying that former prisoners should have to demonstrate they can remain out of trouble before their voting rights are returned.

Last year, however, a group of former prisoners who had their applications turned down sued the state.

In its split ruling, the federal appeals court concluded that Florida has a good chance of prevailing in its appeal and questioned Walker’s decision to order the state put in place a new process. U.S. Circuit Judge Stanley Marcus wrote that there should not be a “rushed decision-making process created on an artificial deadline.”

“There is wisdom in preserving the status quo ante until a panel of this court, on an expedited basis, has had an opportunity on full briefing to come to grips with the many constitutional and equitable issues that have been raised,” Marcus wrote.

UPDATE -- A few readers have emailed me expressing surprise that with this panel, Marcus ended up siding with Gov. Scott.  But that's really no surprise.  Former President Bill Clinton appointed 4 judges to the 11th Circuit -- Rosemary Barkett, Frank Hull, Stanley Marcus, and Charles Wilson.  Marcus and Hull have been two of the most conservative members of the Court since that time (over 20 years).  Judge Hull just took senior status, and Judge Barkett no longer serves on the Court, so that leaves Charles Wilson and Stanley Marcus as two members of the "old" guard.

There are 12 active members of the 11th Circuit:

Chief Judge Ed Carnes (Bush)
Gerald Tjoflat (Ford)
Stanley Marcus (Clinton)
Charles Wilson (Clinton)
William Pryor (Bush)
Beverly Martin (Obama)
Adalberto Jordan (Obama)
Robin Rosenbaum (Obama)
Julie Carnes (Obama, taking senior status in June; Trump has nominated Britt Grant)
Jill Pryor (Obama)
Kevin Newsom (Trump)
Elizabeth Branch (Trump)

So that makes 6 Republican appointments (including Grant) and 6 Democratic appointments. But practitioners know that the 6 Dem appointments are not all "liberal" leaning.  And some of them, like Marcus, are extremely conservative, especially on criminal justice issues.  It's too early to tell how the Trump appointees are going to line up.

I wanted the name to be Neiman Marcus...

...but my vote doesn't count I guess.

Friends of the blog and excellent lawyers Jeff Marcus, Jeff Neiman, and Dan Rashbaum joined forces to start Marcus, Neiman and Rashbaum.

Law360 covers it here:

Three former federal prosecutors with experience in tax, securities and health care have joined forces to create Marcus Neiman & Rashbaum LLP, a South Florida white collar litigation boutique firm with offices in Miami and Fort Lauderdale, the firm announced Monday.
Jeffrey Marcus, Jeffrey Neiman and Daniel Rashbaum, who met while working several years ago at the U.S. Attorney's Office in the Southern District of Florida, opened the doors of their new firm last week. Collectively, they say they have tried more than 75 cases to verdict.
“For me, personally, being able to partner with two very talented white collar lawyers with the experience we all have was a tremendous opportunity,” Marcus, who most recently headed the white collar group at Kenny Nachwalter PA, told Law360.

Meantime, things must be going well at the new firm as Neiman is eating lots of sushi.  Via the DBR:

When Fort Lauderdale attorney Jeff Neiman had a craving for sushi, he jumped in his car and drove to Sushi Rock Cafe a mile up Las Olas Boulevard.
Now, Neiman can just walk to Sky Thai Sushi, the first and only sushi restaurant within walking distance of Fort Lauderdale's power lunch crowd.
"It fills a void for what we need in walking steps of our downtown—good quality sushi," said Neiman, who just formed a litigation boutique with two other former federal prosecutors, Jeffrey Marcus and Daniel Rashbaum. "Given its location, it's going to be hard for Sky Thai Sushi not to attract attorneys and other professionals."

In other news, the Sun-Sentinel covers the sentencing of psychic Rose Marks:

Convicted psychic swindler Rose Marks was sentenced to just over 10 years in federal prison Monday for defrauding clients of her family's fortune-telling businesses out of more than $17.8 million.
Looking frail and downtrodden, Marks, 62, of Fort Lauderdale, sobbed as she apologized to her victims, her family and everyone she hurt, saying her former clients had been some of her best and closest friends.
"At the time, I didn't realize what I was doing was wrong," she said, begging the judge for mercy. "Now, I realize that I caused a lot of hurt and disappointment."
Handcuffed, dressed in dark blue jail scrubs and with her hair pulled back in a ponytail, Marks began to cry even before the judge got on the bench. At times, she looked like she was having a difficult time breathing.
Marks has been locked up since September when a jury found her guilty of 14 charges after a bizarre monthlong trial.

Finally, the Tampa Bay Times is covering the pressing of Florida Senators for confirmation of judges:

The liberal group Progress Florida has organized letter campaigns to Sens. Marco Rubio and Bill Nelson urging them to help speed along five judicial nominees.
"Any observer of lawmaking in Florida has learned by now that no matter what happens in our Legislature, the final decision when it comes to laws that affect our day-to-day lives is more often than not made by a judge. That’s why our courts matter," said Mark Ferrulo, the group's executive director.

11th Circuit says no to death by firing squad

Anthony Boyd, sentenced to death, asked for his punishment to be carried out by firing squad or hanging.  The 11th Circuit, per Judge Marcus, said no. He will now be executed by lethal injection.  From the AJC:

Boyd had challenged Alabama’s new lethal injection protocol, alleging it violates his Eighth Amendment right to be free from cruel and unusual punishment.

Instead, he noted, legislatures in Utah and Oklahoma have approved the firing squad, which has a good track record of “speed and certainty for the condemned.” In the alternative, hanging is an option that has been approved by lawmakers in Delaware, New Hampshire and Washington. And Alabama is “fully capable” of approving those execution methods as well, the appeal said.

The 11th U.S. Circuit Court of Appeals, in a ruling written by Judge Stanley Marcus, said Alabama gives condemned prisoners the choice between two methods of execution: lethal injection and electrocution.

Also, Marcus wrote, the law is clear. Inmates challenging a method of execution must prove there is an alternative method of execution “that is feasible, readily implemented and in fact significantly reduces the risk of pain posed by the state’s planned method of execution,” he said.
“The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution,” Marcus wrote.

“But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses and unconstitutional risk of pain,” he noted. “Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.”

Marcus added, “Notably, Boyd did not propose an alternative drug cocktail that the state could use in his execution.”

Judge Wilson concurred in the result only but wrote separately to explain his disagreement with binding law.

In other news, tomorrow is the District's Bench and Bar conference. All of the judges will be forced to mingle with the hoi polloi. Good times, good times...

Stanley Marcus to take senior status

Big news out of the 11th Circuit today.  Judge Stanley Marcus announced that he will be taking senior status meaning that Donald Trump will get to appoint another judge to that court.  Although Marcus was appointed by President Clinton, he is known for siding with the conservative wing of the court, especially on criminal justice issues so it’s not altogether clear that a Trump appointee will move the already very conservative court more to the right.  With Marcus’ announcement, that means that Trump has two seats to fill on the 11th (Tjoflat also recently announced his retirement).  Both seats will be filled from Florida.

En banc 11th Circuit rules in "Docs v. Glocks" case

The en banc 11th Circuit opinion in the "Docs v. Glocks" case is here.  There are two majority opinions for the en banc Court, one by Judge Jordan and one by Judge Marcus. Judge Jordan’s opinion is joined by Chief Judge Ed Carnes and Judges Hull, Marcus, William Pryor, Martin, Rosenbaum, Julie Carnes, and Jill Pryor. Judge Marcus’ opinion is joined by Judges Hull, Wilson, Martin, Jordan, Rosenbaum, and Jill Pryor.

Judge Jordan's opinion starts this way:

Despite its majestic brevity—or maybe because of it—the freedom of speech clause of the First Amendment sometimes proves difficult to apply. See, e.g., Burt Neuborne, Madison’s Music: On Reading the First Amendment 5 (2015) (“Reading the First Amendment isn’t easy.”); Saxe v. State College Area Sch. Dist., 240 F.3d 200, 218 (3d Cir. 2001) (Rendell, J., concurring) (“[T]here are no easy ways in the complex area of First Amendment jurisprudence.”). Yet certain First Amendment principles can be applied with reasonable consistency, and one of them is that, subject to limited exceptions, “[c]ontent-based regulations [of speech] are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
This particular principle looms large in this case, which concerns certain provisions of Florida’s Firearms Owners’ Privacy Act, Chapter 2011–112, Laws of Florida (codified at Fla. Stat. §§ 790.338, 456.072, 395.1055, & 381.026). And that is because some of FOPA’s provisions regulate speech on the basis of content, restricting (and providing disciplinary sanctions for) speech by doctors and medical professionals on the subject of firearm ownership.
Shortly after FOPA was enacted in 2011, a number of doctors and medical organizations filed suit in federal court against various Florida officials, challenging some of the Act’s provisions as unconstitutional. Ruling on cross-motions for summary judgment, the district court held that FOPA’s record-keeping, inquiry, anti-discrimination, and anti-harassment provisions violated the First and Fourteenth Amendments, and permanently enjoined their enforcement. See Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (Wollschlaeger I). The state officials appealed, and a divided panel of this court issued three opinions—each using a different First Amendment standard of review—upholding the challenged provisions of FOPA. See Wollschlaeger v. Governor of Fla., 760 F.3d 1195 (11th Cir. 2014) (Wollschlaeger II); Wollschlaeger v. Governor of Fla., 797 F.3d 859 (11th Cir. 2015) (Wollschlaeger III); Wollschlaeger v. Governor of Fla., 814 F.3d 1159 (11th Cir. 2015) (Wollschlaeger IV). We voted to rehear the case en banc and heard oral argument in June of 2016.
Exercising plenary review, see ACLU of Fla., Inc. v. Miami-Dade County Sch. Bd., 557 F.3d 1177, 1206 (11th Cir. 2009), and applying heightened scrutiny as articulated in Sorrell v. IMS Health, Inc., 564 U.S. 552, 563–67, 571–72 (2011), we agree with the district court that FOPA’s content-based restrictions—the record-keeping, inquiry, and anti-harassment provisions—violate the First Amendment as it applies to the states. See U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech[.]”); Stromberg v. California, 283 U.S. 359, 368 (1931) (“[T]he conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech.”). And because these three provisions do not survive heightened scrutiny under Sorrell, we need not address whether strict scrutiny should apply to them. We also conclude, this time contrary to the district court, that FOPA’s anti-discrimination provision—as construed to apply to certain conduct by doctors and medical professionals—is not unconstitutional. Finally, we concur with the district court’s assessment that the unconstitutional provisions of FOPA can be severed from the rest of the Act.

 And Judge Marcus starts this way:

The Court has correctly determined that the record-keeping, inquiry, and anti-harassment provisions of Florida’s Firearm Owners’ Privacy Act (FOPA), Fla. Stat. § 790.338(1)–(2), (6), plainly target core First Amendment speech. Because the State has failed to demonstrate that these provisions are narrowly drawn to directly and materially advance a substantial government interest, they cannot withstand heightened scrutiny. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995).

Judge Tjoflat dissented.

Federal Bar Association luncheon

Eleventh Circuit Judges Barkett and Marcus spoke today at the Federal Bar luncheon. It was a really fun, engaging talk. They spoke openly about a variety of issues, including the size of the court, cameras in federal court, the value of oral argument and other.

I'll post more about it soon, but I will note that I asked both of them if they read blogs. Judge Marcus said he read "precious little" on the blogosphere, and Judge Barkett said she did read blogs (although she didn't say which ones).

Here are some pictures:

Judge Davis and Judge Marcus discussing issues of the day and Judge Barkett and Judge Marcus answering questions at the podium.

Luck (and Carnes) v. Marcus

 Woah, this opinion a doozy.  Thanks to my commenters for pointing it out to me.  Apparently it's been the talk of the (appellate) town and I initially missed it.

I don't even know how to describe it... you must read this opinion -- about a mansion in Palm Beach -- for yourself.  It's 136 pages of back and forth between two of the most conservative judges in the country (Luck in the majority, joined by Carnes, against Marcus in dissent).  And it gets really personal.  Here's the first salvo to give you a flavor:

The “irony today” is not, as the dissenting opinion says, that we have done as the Supreme Court has instructed and conducted an independent examination of the whole record relating to Burns’s constitutional claims. Dissenting Op. at 73. The “irony today” is that it is the dissenting opinion that goes beyond the “whole record” in this case, the record developed by the parties and put before the district court. The dissenting opinion consults extra-record sources and draws from them the “facts” that it determines support its conclusion. Throughout the dissenting opinion, it laments the “incomplete record” and the “limited record” that’s before us. Id. at 74, 123 n.5. So, the dissenting opinion escapes the confines of the record to look for evidence that the parties never put forward and the district court never considered.  

I'm no civil lawyer, so I can't tell you who is right.  And I'm no architect or student of these types of homes, so I don't know who has the better of the argument here (maybe renaissance man Rumpole can help) even though both opinions have pictures and tons of historical references.

I'm just here for the food fight! Just to give you a sense, the majority opinion references the dissent 98 times.*  I wonder how Judge Marcus felt when he read Judge Luck's opinion saying that he (Marcus) didn't understand "the way appellate review works."  

The opinion is also noteworthy because just a few months ago, Judge Luck joined an opinion by Judge Newsom criticizing Judge Rosenbaum for being too personal.  As I explained here, I thought that criticism was way off and that Judge Rosenbaum was anything but personal in her dissent.  

So something must be going on to get Judge Luck so upset in this pretty mundane civil dispute.  Anyone know the backstory?

*I simply did a find "dissent" and got 98 hits, so that number may be slightly off.  But you get the idea.

11th Circuit update

Thanks very much to JANE MOSCOWITZ for this guest post:

Richard Strafer and Howard Srebnick had a big win in the Eleventh Circuit this week in United States v. Kaley. Judges Marcus, Wilson and Tjoflat reversed and remanded the district court's decision not to permit the Defendants to challenge the pretrial restraint of assets they wanted to use to hire their counsel of choice, Howard Srebnick and Susan Van Dusen. Judge Marcus wrote that the Court was bound by United States v. Bissell, 866 F.2d 1343 (11th Cir. 1989), which held that a defendant is only entitled to such a hearing if he meets the Barker v. Wingo balancing test. Here, clearly believing that there should have been an evidentiary hearing, the Court determined that the trial court had failed correctly to balance the Defendants’ assertion of their right to a hearing and the prejudice to them of its denial. Judge Marcus especially noted the prejudice to the Defendants of being deprived of their counsel of choice, calling that a “powerful” form and “substantial source” of prejudice. The Court sent the case back for a correct evaluation of the factors to determine whether a hearing should be held.

Judge Tjoflat concurred in a separate opinion in which he held that Bissell should not apply because its use of Barker v. Wingo was “non-binding dicta.” Judge Tjoflat did not find the return of the indictment or the submission of an ex parte affidavit sufficient to determine whether the restrain was proper. He wrote that under the standard procedural due process test of Mathews v. Eldridge, an evidentiary hearing should be held ( a proposition with which Judge Marcus agreed) and should be held pretrial. The resolution of whether assets that are to be used for the payment of counsel of choice may continue to be restrained cannot wait for determination at the trial. He noted that, if the matter is carried along till trial, the “prosecutorial incentives increase the likelihood of an erroneous deprivation in the absence of a prompt hearing. A prosecutor has everything to gain by restraining assets that ultimately may not be forfeited. By doing so, he can stack the deck in the government’s favor by crippling the defendant’s ability to afford high-quality counsel. If the prosecutor can delay judicial oversight of the restraint until trial, he also has nothing to lose, as he does not have to dedicate any extra resources to defending his decision.”

NED award goes to Judge Stanley Marcus

Another item that I missed last week while I was away was the Federal Bar's annual Gala, which honored Judge Marcus with the Edward B. Davis award, known as the NED.

Also, Ani Martinez was installed as the new president of the chapter.

Congratulations to both Ani and Judge Marcus.

"At all times relevant to this lawsuit, Donald J. Trump was a private citizen. As a result the Court will refer to him as such in this decision. In doing so, the Court means no disrespect to him or the esteemed position he now holds."

That was Judge Marra in this 21-page order finding against Trump after a bench trial.  From Politico:

A federal judge has ordered a golf club owned by President Donald Trump to refund nearly $6 million to members who said Trump's team essentially confiscated refundable deposits after taking over the country club in 2012
U.S. District Court Judge Kenneth A. Marra ruled that the Trump National Jupiter Golf Club violated the contracts with members by retaining the fees and locking out many members who had declared their plans to resign.
"The Court concludes that the Plan documents, as properly interpreted, were intended to provide club members of the resignation list with a continuing right to use the Club facilities until their membership was reissued to a new member, provided the club member was otherwise in good standing with the Club," Marra wrote.

While that bigly trial came to a close, another one, involving allegations of smuggling Cuban baseball players, led off with opening statements before Judge Kathy Williams.  H. Ron Davidson opened for the government, and the two defendants, Bart Hernandez and Julio Estrada, are represented by Jeff Marcus/Dan Rashbaum and Sabrina Puglisi/Dianne Carames.  Curt Anderson from the AP on openings:

 Florida-based sports agent and a trainer ran legitimate businesses aimed at getting Cuban baseball players to sign U.S. major league contracts but were not involved with smuggling players from the communist island or falsifying travel documents, their lawyers told a federal jury Wednesday.
Opening statements were held Wednesday in the case against agent Bartolo Hernandez and trainer Julio Estrada, both of whom have been charged with conspiracy and alien smuggling. Both face lengthy prison sentences if convicted.
***
Hernandez attorney Jeffrey Marcus said the agent's only involvement with the players was to negotiate their contracts with professional teams through his company, Global Sports Management, and that his percentage was relatively small at less than 5 percent.
"His business is baseball. It's not smuggling," Marcus told jurors. "This case, I think, is a stretch in many ways, in fact and in law."
Likewise, Estrada lawyer Sabrina Puglisi said her client's role was operating training facilities in Mexico and the Dominican Republic so players could stay sharp while they awaited permission to come to the U.S.
Under Major League Baseball rules, Cuban players who establish residency in a third country can sign lucrative deals with teams as free agents, but would have to submit to the baseball draft and get paid less if they come directly to the U.S.
"Julio has nothing to hide. He did everything above board. He's running a legitimate business," Puglisi said.
No players are accused of wrongdoing. Several Cuban-born players are likely to testify, including Yoenis Cespedes of the New York Mets, Jose Abreu of the Chicago White Sox and Adeiny Hechevarria of the Miami Marlins. Puglisi said more than 20 players were trained by Estrada.
Assistant U.S. Attorney Ron Davidson said in his opening statement that some players came to the U.S. with falsified passports or used other forms of deception to establish residency in Mexico and other countries. One tactic, he said, was to submit documents to the Mexican government claiming the players had actual jobs such as a welder, mechanic, even as an "area supervisor" for a jet ski company.
"It was just made up," Davidson said.

News & Notes

1. Jeff Weiner has a new book. Check out this very useful resource -- Federal Criminal Rules & Codes plus. It's got everything a federal criminal lawyers needs in one handy place.

2. John Edwards may get charged. Amazing to me that we are wasting our scarce prosecutorial resources going after Edwards for being a scumbag.

3. Jared Loughner is incompetent. The arrest photo made that pretty clear, no?

4. How Appealing has this info about the panel for Obamacare:

An anonymous source reports that the three-judge panel will consist of Chief Judge Joel F. Dubina and Circuit Judges Frank M. Hull and Stanley Marcus.
Judges Hull and Marcus were both appointed to the Eleventh Circuit by President Clinton. Chief Judge Dubina was appointed to the Eleventh Circuit by the first President Bush. And don't let the fact that all three judges have seemingly male first names fool you, because Judge Hull is female.

Justice Jordan?

When we first started the blog, we argued that the upcoming High Court vacancies should be filled by a Floridian. And during that Supreme Court mania, some of our own judges, like Cecilia Altonaga and Federico Moreno (and 11th Cir. Judge Marcus and Fla. Sup. Ct. Justice Cantero) were mentioned. But instead we got Roberts and Alito...

Now Tom Goldstein, of SCOTUSBlog, theorizes who will be on the shortlist should a Democrat take the White House in 2008. Here is his original post and his follow-up post.

On the list -- Judge Adalberto Jordan! Goldstein says that Jordan makes the shortlist assuming that he quickly ascends to the Eleventh Circuit. Very exciting...

Our old poll on the subject is still up. The current results for the top three:


Stanley Marcus 38%

Federico Moreno 36%

Adalberto Jordan 9%

Judge Altonaga remembers Judge Davis

There are so many great comments about Judge Davis that were posted, but I thought I'd share with everyone on the front page, this letter from Judge Altonaga:

May 27, 2010

Dear David:

On Monday, May 24, 2010, you shared the story of U.S. District Judge Edward B. Davis, following his passing as a result of complications from open-heart surgery. I write you this letter in the event you would like to share some of my thoughts in the Southern District of Florida Blog.
I had the extraordinary good fortune of being hired by Judge Davis to be his February term law clerk, or "even" clerk as we were known, and worked for him in 1987. Since then, he has been my mentor, advisor, and kindest of friends. Words cannot describe the goodness and compassion of the man or his depth and integrity. Among the counsel and advice he would give his young law clerks or young lawyers as he would call us, was not to be "mean." I don’t believe Judge Davis had a mean bone in his body. Over the last 24 years I have never seen him angry at or impatient with anyone.

Judge Davis was always thoughtful and generous. I remember one time when he offered then-U.S. District Judge Stanley Marcus to share his office and chambers when the Dyer Courthouse was closed for asbestos removal. We shared chambers for several months with Judge Marcus and his law clerks, and while space was tight, the mood was always light and welcoming. On another occasion, when the late Senior Judge Joe Eaton had need of a law clerk for a particular assignment, Judge Davis asked me if I would mind being on loan to Judge Eaton to help him with that assignment, and proceeded to share me with Judge Eaton.

I clerked for Judge Davis during the days when memory typewriters and word processors were all the tools we had and files were brimming over with paper. The Judge would be in the courtroom every day with trials and all manner of hearings. It was his custom to bring in lawyers after the trials and talk to them privately, giving them encouragement and advice on trial practice. In the late afternoons, the chambers was filled with the sound of his laughter and that of the late Judge Eugene Spellman, for they were good friends and at the end of the day Judge Spellman would come to the Judge’s office where stories were shared and a moment of relaxation seized. When the Judge hired us, he would make clear the work day started at 8:00 a.m. and we were to stay with him until he left, which was usually after 7:00 p.m. He worked very hard, and while we all did as well, it was without undue pressure. Certainly I never felt any pressure from him; he always gave assurances that it would all work out.

Whenever I had occasion to travel with the Judge to Key West for trials, he and his wife Pat would include me in their dinners at the end of the work days. In keeping with the Judge’s casual and informal manner, the Courtroom Deputy, Michael Beck, and I would join the Judge and his wife in their hotel room, and from there we would all go together to share a meal.
I, along with countless of his law clerks, have had the extraordinary good fortune of having been offered the opportunity to share Judge Davis. We each became a part of the Judge’s family, so much so, that when after one reunion he sent me a copy of a group picture and signed it, "To Cecilia, my favorite law clerk and judge," I believed it. I came to discover later that he signed copies of the picture in the same way for each of his law clerks, letting each know he or she was his "favorite!" That picture, and another of the two of us in his chambers so many years ago, rests beside my computer where I am reminded daily of the "gentle giant" who has had such an impact on my life.

Judge Davis was my source of inspiration and I credit him with my desire to become a judge. He administered my oath as judge on three separate occasions, the last of which was as a federal district judge. When I joined the Southern District of Florida in 2003, I was humbled to occupy his former office and courtroom.

Judge Davis was the face of kindness, fairness and compassion in our court. May God bless and keep him.

Sincerely,

Cecilia M. Altonaga

Intactivists!

Ah, Florida (via the Sun-Sentinel):

A federal judge will get 10 days advance notice before a 4 1/2-year-old boy at the center of a circumcision battle is set to have the procedure, the father's attorney promised Monday.
U.S. District Judge Kenneth Marra — hearing an emergency request from an attorney for the boy and his now-jailed mom, Heather Hironimus, to block the surgery already cleared by two state courts — had inquired about the child's whereabouts and the status of the circumcision.
"The child is healthy and well," said Ira Marcus, attorney for father, Dennis Nebus. He told the court the boy is staying with his dad in a "safe and secure" location, has not yet been circumcised, and would not be operated on before telling Marra first.

"Mr. Nebus is entitled to some finality," Marcus said, arguing the boy's parents' legal fight has gone on long enough. "And you know what? The child is entitled to some finality."
But Thomas Hunker, hired by Hironimus to represent the child, urged Judge Marra to step in and protect the boy from "physical harm," brain damage or worse from an elective procedure that is not medically necessary for him and violates his Constitutional rights.
"This is a potentially life and death situation," Hunker said, contending that the child doesn't respond well to general anesthesia and is prone to scarring that could further harm his genitals if he survives. He further argued the procedure to remove the foreskin from the boy's penis is not "reversible" and violates his right to bodily "integrity."
Marra concluded a 75-minute hearing without ruling on the bid for a temporary restraining order against the circumcision — or Nebus' motion to throw the case out of federal court.
Several times, Marra peppered Hunker with questions about why he should hear a case that had already been decided in the father's favor by state circuit and appellate courts. "So you want me to take a fresh look at what was already done by the state court?" Marra asked.
***
On Friday, the attorney filed for the restraining order until the resolution of a federal lawsuit that was filed on the boy's behalf on April 13. The lawsuit states the boy's rights were violated because he hasn't had a psychological examination or an independent guardian to speak on his behalf in court as the mother requested, along with other claims.
The lawsuit lists as defendants his father, Judge Gillen, and Palm Beach County Sheriff Ric Bradshaw. Attorneys for Gillen and Bradshaw urged Marra to remove them from the case.
Meanwhile, Hunker also filed in state court Friday an emergency motion on behalf of Hironimus to freeze all state judicial orders and court proceedings in the long-running custody battle while the matter is pending in federal court.
In March, Gillen ruled Hironimus had committed a "direct, contemptuous violation" of court orders by continuing work with circumcision opposition groups — called "intactivists" — that have "plastered" the child's photos and name "all over the Internet."
During Monday's hearing, a small group of the mother's supporters stood outside the courthouse in West Palm Beach.
"I've been an advocate for all human beings to have bodily autonomy," said Rebecca Boni, a mother of two young children from Boca Raton. "To me it's so obvious it blows my mind the [state] judge decided to side with the father."

"As Kim Kardashian is with her husband, I'm not going to keep you long."

That was Chief Judge Ed Carnes today at Robin Rosenbaum's investiture. It was a great event with lots of good speeches.  Judge Carnes also invoked the song "Don't Rock the Boat Baby" in describing the importance of collegiality on the 11th Circuit.



Judge Stanley Marcus (who has known Judge Rosenbaum since she was his law clerk) gave a very funny talk, telling numerous jokes, which had the audience laughing out loud.  He started out by saying that since this was the third investiture that he was speaking at for Judge Rosenbaum, he felt a little like Zsa Zsa Gabor's 8th husband: he knew what was expected of him, but he wasn't sure how to make it different.



In response, Judge Rosenbaum said: "If you've enjoyed the entertainment, they'll be playing again next week in Las Vegas."  Then she invoked Talking Heads, "Once in a Lifetime."



Very fun event.



Here are some pictures:

Here is Judge Marcus swearing in Judge Rosenbaum.

How would you like this jury:

And here are 11 of the 12 active judges on the 11th Circuit, plus two senior judges:

Monday Morning Blogging

I took the kids to Disney World this weekend. Back to the stack of mail and phone messages that ensue from a couple days away from the office....

Anything new going on in the District? Email me with some tips.

There are two important lunches in the next two weeks.

First, the Anti-Defamation League is honoring my former boss, Edward Davis, and H.T. Smith. Professor Alan Dershowitz is the keynote speaker.

And next Wednesday, November 14, the Federal Bar Association will be honored with Eleventh Circuit Judges Rosemary Barkett and Stanley Marcus. They will be answering your questions, so please come prepared.

News & Notes

1.  JNC interviews are today for the open federal seat.  Will be interesting to see who makes the cut.

2.  The 11th Circuit granted en banc review in United States v. Roy.  This was the case authored by Judge Wilson in which the court granted a new trial for a defendant because the district judge conducted part of the trial without him and his counsel.  Chief Judge Ed Carnes dissented.  Now the whole court is going to hear the case.  Interestingly, the Carneses are using their first names now to distinguish themselves.  Here's the beginning line of the order: Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, PRYOR, MARTIN, JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.  Soon the Pyrors will be doing the same thing...


3. Judge Tjoflat, joined by Judge Ed Carnes and Judge Marra, has this new opinion in United States v. Campbell, which starts this way:

In this case, Maurice William Campbell, Jr., and several co-conspirators, created, and successfully executed, a scheme to defraud the State of Alabama to the tune of several million dollars. The scheme was ultimately uncovered, and the co-conspirators were separately indicted by a Northern District of Alabama grand jury. Campbell was charged with wire fraud, mail fraud, money laundering, engaging in monetary transactions in criminally derived property, and conspiring to commit those offenses.
Campbell pled not guilty and stood trial. Several of his co-conspirators, having pled guilty, testified for the prosecution. The jury believed what they had to say and found Campbell guilty as charged. At sentencing, the District Court departed downward from the sentence range the Sentencing Guidelines prescribed, 262 to 327 months’ confinement, and imposed prison sentences totaling 188 months. The court also ordered him to pay $5.9 million to the State of Alabama in the form of restitution.
Campbell appeals his convictions and sentences. He appeals his convictions on the ground that the Government failed to prove his guilt beyond a reasonable doubt.2 He appeals his sentences on the ground that they are procedurally and substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). We find no merit in Campbell’s challenges to his convictions, and therefore affirm them, because the evidence of guilt, which we set out in considerable detail infra, was overwhelming. We also affirm his sentences, finding no procedural or substantive error.

4.  Check out  the Dade County Defense Bar Association's Fall 2014 Ethics Seminar, which is being put on by Robert Kuntz.  Looks interesting!

Let's Just Cut to the Chase, Please

Let's Just Cut to the Chase, Please 

GUEST POST BY MICHAEL CARUSO

Yesterday, the 11th Circuit decided U.S. v. Sotis (Mizelle (M.D. Fla.) with William Pryor and Marcus joining) and affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya.

At trial, government agent Wagner testified to his interactions with Sotis. On cross-examination, the co-defendant's counsel asked Wagner whether civil penalties were an option he could have pursued instead of criminal penalties. On re-direct, the government asked whether Wagner had seen a case with “this level of willfulness.” Sotis objected, but only to Wagner’s comparison to previous cases.

On appeal, the Court concluded that Wagner’s opinion was improper but that allowing it was not plain error. Rule 701 restricts a lay witness to testimony rationally based on the witness’s perception, which is helpful to determining a fact in issue and that is not based on specialized knowledge.  Wagner’s testimony that he had never seen so much willfulness was improper because it purported to tell the jury about Sotis’s state of mind—something to which neither he nor any other witness could testify based on his rationally based perception. Permitting his testimony was error. But "harmless." In other words, mess around prosecutors, and you WON'T find out.

The evidence ruling seems clear. Interestingly, DOJ lawyers argued on appeal that Wagner's "opinion was a rational inference based on his personal participation and observations as a special agent for the Commerce Department and therefore did not exceed the permissible bounds of witness testimony." I wonder what the lesson is here. Don't ask this type of question, or ask, and even if found to be an error, the conviction will be saved by the harmless error rule.

What also should be clear but often is not is what may happen after a party "opens the door." The prosecutors argued, and the trial judge found that Sotis had opened the door. I've always believed, however, that a lawyer cannot open the door to the introduction of inadmissible evidence. The Court didn't address this point. Perhaps the Court felt that something that should be understood didn't have to be said.

Judge Jordan answers questions at the Bankers Club

It was a good talk -- Judge Jordan is extremely patient and answered everyone's questions, even the silly ones that drag on and on where lawyers just want to hear themselves say something.  Judge Marcus even joined in on one answer and explained that the judges on the court do not engage in "collective bargaining." 

While we had two circuit judges in attendance (which is about 20% of the court!), there is a fight brewing over President Obama's most recent nomination to the 11th Circuit -- Jill Pryor.  From the AJC:

The 11th Circuit opening, created by Judge Stanley Birch in August 2010, also has been declared a judicial emergency. The circuit has jurisdiction over cases in Georgia, Florida and Alabama.
No pick for any of the vacancies has made it to the committee hearing stage and the process typically slows in an election year, with Republicans hoping for a new administration with more friendly nominees.
But the tango between Georgia’s senators and the White House has been odd even by the standards of the often contentious judicial nomination process, according to longtime observers.
Chambliss and Isakson refuse to say why they are blocking President Barack Obama's nomination of Atlanta attorney Jill Pryor for the 11^th Circuit appeals court, after both senators said they would approve her if she were nominated to the district court.
In January Chambliss and Isakson wrote to the White House saying they would approve Pryor and U.S. Magistrate Linda Walker for the district court openings, and Atlanta attorney Mark Cohen for the appeals slot.
Obama nominated Walker for the district court judgeship in early 2011, but as is often the case with multiple nominees from the same state the White House demanded she be included as a package with federal public defender Natasha Perdew Silas, whom Isakson and Chambliss blocked without giving a reason.
The Senate returned both nominees to the White House at year's end, and Obama has not renominated anyone for the district court openings.
The two senators also have not given "blue slips" to the Senate Judiciary Committee to allow a hearing on Pryor, a longstanding courtesy for home-state senators. Representatives of both senators said they do not comment on judicial nominees.
“They need to explain publicly why they’re holding up her nomination, which has been vacant for a long time,” said University of Richmond law professor Carl Tobias, who studies the confirmation process. “They’re sort of turning the Constitution on its head. The senators don’t nominate and give the president a chance to reject.”
Party politics is a potential motive. According to campaign finance records, Pryor often donates to Democrats, and last year she gave $2,500 to Obama’s re-election campaign.
Cohen, the senators’ preferred appellate pick, served as executive counsel and chief of staff to Gov. Zell Miller.

Glenn Sugameli calls out the senators:

Glenn Sugameli, who tracks judicial nominations for the environmental group Defenders of Wildlife, noted that Georgia's two senators were outspoken in opposing filibusters of President George W. Bush's judicial nominees. In a 2005 joint op-ed in The Atlanta Journal-Constitution Chambliss and Isakson wrote “denial of an up-or-down vote goes against basic principles of fairness."
Sugameli said the turnaround is striking, considering that the senators are preventing a hearing, much less a filibuster.
“To pervert that into a situation where you’re essentially demanding the right to make all of the nominations for all of the slots is outrageous, unwarranted, and ... it really hurts the people not only in Georgia but in the rest of the circuit for whom justice delayed is going to continue to be justice denied,” Sugameli said.

Judge Bandstra to JAMS

The DBR covers Judge Bandstra's departure to JAMS.  Good luck to him!  There are some good stories about him in the article:

Bandstra’s legal experience includes three years with Katten Muchin in Chicago followed by three more as an assistant U.S. attorney trying 30 cases under Stanley Marcus. He also spent three years at Fowler White Burnett handling medical malpractice for firm shareholder and co-founder Henry Burnett.

“Henry’s my mentor and the person I respect most,” Bandstra said.

He said his experience as a magistrate can help sparring sides see their legal situation more realistically.

“One of the things I’ve enjoyed most as a judge is the settlement of cases where I’ve had some input,” Bandstra said.

After South Florida’s district judges chose Bandstra as a magistrate in 1989, U.S. District Judge Eugene Spellman telephoned to welcome him with two interesting details.

“First of all, you weren’t my first choice,” Bandstra recalled him saying. “That took me back a little bit.

“The other thing was, ‘You should know you got the judges’ vote on the first ballot, which has never happened.’ ”



The debate last night was a good way to show how important facial expressions are during trial.  In the first debate, Obama lost not so much for what he said, but mostly because he kept looking down, writing, and shaking his head.

 Last night, Romney got trounced in part because he had this weird grin on his face all night which didn't seem appropriate.

 Plus, there was this: