Chief Judge Ed Carnes has announced that Douglas J. Mincher will succeed John P. Ley as the Clerk of the United States Court of Appeals for the Eleventh Circuit. Mr. Mincher has served as chief deputy clerk of the United States District Court for the Northern District of Georgia since 2010. He holds a BA degree in political science and history from Youngstown State University and earned his MS degree in Judicial Administration from the University of Denver, College of Law. Mr. Mincher has nearly 25 years of experience as a court administrator in federal, state, and municipal courts. He is married to Diana Mincher, and they are the parents of three adult children.
The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Thursday, March 19, 2015
New Clerk of the 11th Circuit
Tuesday, March 17, 2015
More judgeships in the SDFLA?
In other action, today the Conference adopted the results of the biennial judgeship survey conducted by its Judicial Resources Committee, which identified the need for five new appellate and 68 district judgeships. The Judicial Conference has provided the Director of the Administrative Office with the authority to seek separate legislation for Conference-approved judgeships in selected districts, providing the Judiciary with more flexibility in pursuing new judgeships in courts with the greatest needs.
Since the last comprehensive judgeship bill was enacted nearly 25 years ago, the number of cases filed in the U.S. courts of appeals increased by 28 percent and the number of cases filed in the district courts increased by 41 percent – civil filings grew by 40 percent and criminal filings by 43 percent.
The 26-member Judicial Conference is the policy-making body for the federal court system. By statute the Chief Justice serves as its presiding officer and its members are the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.
H/T Glenn Sugameli
Monday, March 16, 2015
What will happen to Judge Fuller?
Federal District Judge Mark E. Fuller was controversial even before he was arrested on allegations of beating his wife last year.Hope everyone enjoyed Pi day this weekend. Get ready for March Madness this week. (And yes, the Canes were robbed.)
The Alabama judge was criticized for sitting on cases brought by the government even as his aviation company was getting hundreds of thousands of dollars in taxpayer-funded business. Appointed by a Republican, he was denounced for putting a former Democratic governor in manacles after a corruption conviction.
He was the talk of the courthouse for having an extramarital affair with his courtroom assistant, and for his messy public divorce.
Fuller, 56, is now battling bipartisan calls to resign over a fight he had seven months ago with the same former courtroom assistant, whom he'd married. The argument started after she accused Fuller of cheating on her with his law clerk.
Adding to Fuller's problems was that a few weeks after he was arrested, video was released of NFL star running back Ray Rice knocking his fiancee unconscious, putting a national spotlight on spousal abuse. The Baltimore Ravens dropped Rice.
"If an NFL player can lose his job because of domestic violence, then a federal judge should definitely not be allowed to keep his lifetime appointment to the federal bench," said Rep. Terri A. Sewell (D-Ala.).
Sewell and both of Alabama's Republican senators, along with other members of the state's congressional delegation, have called on Fuller to step down.
Fuller's judicial career now rests largely with a five-judge review panel that has investigated his behavior and is expected to release its findings this month. A House of Representatives committee is gearing up for possible impeachment hearings against Fuller, who was appointed to the federal bench by President Bush in 2002.
Retired Alabama federal Judge U.W. Clemon, who as chief judge of the U.S. District Court in Birmingham dealt with similar ethical issues, said that Fuller's constitutional appointment may not be enough to save his job.
When a judge's behavior results in him "being thrown in jail like a common criminal, that's not within the conduct that is condoned by the Constitution," Clemon said.
Kelli Fuller, the former court assistant who was divorced from Fuller after the incident, has not spoken in public about what happened at the Ritz-Carlton hotel in Atlanta last August. But her version is amply represented in police files.
"He's beating on me! Please help me," Kelli Fuller pleaded to a police dispatcher, who called for an ambulance and could be heard telling a co-worker, "I can hear him hitting her now."
The policeman who entered the hotel room found her with "visible lacerations to her mouth and forehead" and said the room smelled of alcohol.
"Mrs. Fuller stated when she confronted him about their issues, he pulled her hair and threw her to the ground and kicked her," the police report said. "Mrs. Fuller also stated she was dragged around the room and Mr. Fuller hit her in the mouth several times with his hands."
Judge Fuller was taken to jail, where he spent the night on a charge of misdemeanor battery. But he avoided a criminal record by agreeing to a pretrial diversion program, including a drug and alcohol evaluation and 24 sessions of domestic violence counseling.
Nebraska federal court Judge Richard Kopf, who writes a blog about judicial issues, called it "a sweet deal."
Friday, March 13, 2015
Briefer briefs?
Before the current limit was established in the 1990s, briefs were capped at 50 pages, a rule dating back to when attorneys used typewriters. According to a 2,600-word “short history” of the last rule change prepared by a University of Pennsylvania law professor, lawyers were skirting the page limit by squeezing the space between lines, letters and words. So they decided a word limit would better discourage verbiage.
A judicial advisory committee made up of judges, lawyers and law professors selected by Chief Justice John Roberts now says that page-to-word conversion miscalculated how many words were in an average 50-page brief. The committee conducted a study finding that a typical page runs about 250 words. It did a new calculation—250 multiplied by 50—to come up with the 12,500 limit.
Lawyers say they’re skeptical of that logic. “Identifying a purported mathematical error that occurred 15 years ago does not provide a sound basis to change current policy,” wrote the Council of Appellate Lawyers, a nationwide group affiliated with the American Bar Association.
Michael Gans, clerk of the Eighth U.S. Circuit Court of Appeals in St. Louis, who oversaw the word-count study, says the process couldn’t have been more painstaking. It was carried out by a high-school graduate who interned at his office and spent a recent summer in a cubicle counting every single word of 200 printed-out briefs that served as the sample.
“I felt sorry for her, but that’s what she did all summer,” Mr. Gans said. “She still wants to go to law school.”
“It is harder to write a short opinion than a long opinion,” said Judge Silberman. “Perhaps that explains why some lawyers object. I think the computer is a bit problematic. It’s too easy to write too much.”
Justice Sotomayor spoke yesterday at Davidson:
She told a basketball court of seated students that she’d spoken at “countless” colleges and universities, and Davidson was the first school to seat students “front and center.”
Pointing to alumni and townspeople in the bleachers, she said: “Generally those guys are down here.”
The students cheered.
Sotomayor, the court’s third woman and first Hispanic justice, spoke honestly about her life and how her experiences have affected her nearly 25 years as a judge.
She was raised in public housing projects in New York’s South Bronx, primarily by her mother when her father suddenly died when she was 9.
After high school, she earned a scholarship to Princeton University, where “when I arrived, I thought I was an alien – not in a different land, but in a different world.”
“The people there had a better education than I did then,” she said. “They were taking spring breaks and flying places and they were traveling to Europe. Europe was a place I thought I’d never see.”
***
She said the current court could use more diversity of experiences. All its justices went to Ivy League schools, most are from the Northeast and none were defense lawyers before they took the bench. Few were small firm practitioners and many were academic lawyers. None, except for Sotomayor, had state government experience.
“That’s a bad thing,” she said. “We’re being asked to make decisions that affect every aspect of life. We’re reviewing state criminal law convictions every single day. It’s valuable to have someone there who can explain some of that.”
Read more here: http://www.charlotteobserver.com/news/local/article13844528.html#storylink=cpy
Read more here: http://www.charlotteobserver.com/news/local/article13844528.html#storylink=cpy
Two brothers from Oakland Park pleaded guilty to federal terrorism charges Thursday, admitting they plotted a terrorist attack on landmarks in New York City and later assaulted two deputy U.S. Marshals while in custody.
Raees Alam Qazi, 22, and Sheheryar Alam Qazi, 32, both pleaded guilty in federal court in Miami to one count of conspiring to provide support to terrorists and conspiring to assault two federal employees. The younger brother pleaded guilty to an additional charge of attempting to provide material support to al-Qaida.
The Qazi brothers, who wore beige prison scrubs and were handcuffed, shackled and under tight security in court, both said "Guilty" when asked how they wanted to plead. They said little more than "Yes, ma'am" and "No, ma'am" in response to the judge's questions. Both men have thick beards, Sheheryar Qazi's hair was closely shaved and the younger brother's hair is about the same length as when he was arrested.
Wednesday, March 11, 2015
Chief Judge K. Michael Moore speaks to Federal Bar Association
Tuesday, March 10, 2015
Supreme Court to review Florida death penalty
HURST, TIMOTHY L. V. FLORIDA: The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).
Judge Martinez may be vindicated after all.
Monday, March 09, 2015
Weekend News and Notes
U.S. Sen. Robert Menendez’s longtime friendship with a wealthy Palm Beach County eye doctor may soon come back to haunt the powerful Democrat from New Jersey.
The Department of Justice plans to file corruption charges against Menendez in the coming weeks, capping a two-year probe of his relationship with ophthalmologist Salomon Melgen, CNN and several major news outlets reported on Friday. And Melgen — a generous donor of trips and campaign money to Menendez — is under a separate investigation himself by a federal grand jury in West Palm Beach on allegations that his practice over-billed Medicare by millions of dollars.
Prosecutors and the FBI have been focusing on Menendez’s efforts on behalf of his political benefactor, including personally trying to resolve the physician’s high-stakes billing dispute with the taxpayer-funded Medicare program. During the period the senator sought to help the doctor, Menendez went on several trips with Melgen to the Dominican Republic on the physician’s private plane and stayed at his resort-area home in 2010 — all without reporting the gifts.
As the controversy about their relationship escalated two years ago, the senator quietly wrote a personal check to reimburse Melgen for the unreported trips, but that didn’t end several on-going federal probes.
On Friday evening, Menendez insisted during a news conference in his home state that he has done nothing wrong.
“Let me be very clear, I have always conducted myself appropriately and in accordance with the law,” he said. “Every action that I and my office have taken for the last 23 years that I have been privileged to be in the United States Congress has been based on pursuing the best policies for the people of New Jersey and this entire country.”
2. A businessman who helped smuggle Yasiel Puig to the U.S. was sentenced to 1 month by Judge Scola. From Curt Anderson:
A businessman who helped Los Angeles Dodgers star Yasiel Puig get out of Cuba to sign a rich American baseball contract was sentenced Friday to a month in prison and five months' house arrest for violating U.S. immigration laws.
U.S. District Judge Robert Scola on Friday gave Gilberto Suarez, 41, less than the one-year maximum partly because his main role in the 2012 smuggling venture was having Puig driven in a taxi from Mexico City to the Texas border. Other conspirators, including boat captains and members of Mexico's violent Zetas drug gang, were involved in other stages of the trip.
Scola also said he was showing Suarez some leniency because Puig and others in the smuggling trip were threatened by the Zetas and possibly by corrupt Mexican police.
"I think the safety of the player and the other aliens was also paramount in his mind," the judge said.
Defense attorney Bijan Parwaresch said Suarez initially sought only to assist Puig in signing a Major League Baseball contract. Cuban players who defect often establish residency in a third country, such as Mexico, so they can sign lucrative free agent deals rather than smaller contracts if they come directly to the U.S. and are subjected to baseball's draft.
Where Suarez went wrong, he added, was deciding to take Puig to the U.S. border without immigration papers. Under the "wet foot, dry foot" policy, Cubans who reach U.S. territory are usually permitted to stay, even if their arrival is violates the law.
"It didn't start out with a criminal intent," Parwaresch said at a hearing. "It ended up as a criminal action."
3. Lazer Collazo to plead guilty to a misdemeanor, Jay Weaver reports:
Prominent Miami-Dade County baseball coach Lazaro “Lazer” Collazo plans to plead guilty to newly filed misdemeanor charges of possessing unlawful steroids, according to his defense attorney.
Collazo was among eight defendants who were originally charged in federal court with conspiring to distribute steroids through a Coral Gables anti-aging clinic, which was at the center of a Major League Baseball scandal.
Collazo, 51, was accused of distributing them to high school athletes, while the other seven were charged with supplying them to MLB players — including New York Yankees slugger Alex Rodriguez, a onetime Miami-Dade high school standout.
Collazo’s defense attorney, Frank Quintero, confirmed Friday to the Miami Herald that his client has agreed to the terms of a plea deal with the U.S. attorney’s office that would recommend two years of probation. His change of plea hearing is scheduled for March 16.
4. SCOTUSblog got a day pass to the press box last week. Volokh has the story on the interesting work around:
A little wrinkle in the long-running quest of the renowned SCOTUSblog to secure credentials for its coverage of the Supreme Court: Today SCOTUSblog correspondent Amy Howe sat in the court’s press section by virtue of a day pass that the court has begun issuing to the blog. It’s the second such pass that SCOTUSblog has used, according to Publisher Tom Goldstein — with the first instance being Monday’s oral arguments on Arizona’s approach to redistricting.
“They have really tried to accommodate us,” says SCOTUSblog’s Goldstein. “They’re not trying to get in our way.”
SCOTUSblog has expended a grueling effort for credentials in the Supreme Court chamber, a process complicated by Goldstein himself: He’s both the publisher of the blog as well as a frequent Supreme Court practitioner as a partner in Goldstein & Russell, P.C. Just last month, the high court issued a new policy on press credentials that officially stiff-arms SCOTUSblog on getting its own credential but should make room for its veteran correspondent, Lyle Denniston, to continue covering proceedings with what’s known as a “hard pass.”
Denniston, a 57-year veteran of high court reporting, has long held his hard pass pursuant to his association with Boston NPR station WBUR. He’s now applying for a new pass under the auspices of his independent blog, “Lyle Denniston Law News.”
Here’s how the workaround operates: Denniston’s posts appear first on his eponymous blog, unedited. Then SCOTUSblog staff picks them up, edits them and posts a version on SCOTUSblog. Not all of the content on Denniston’s blog makes this migration. The arrangement allows the court to ensure that Denniston is acting as an independent journalist for his own outlet and not as an agent of Goldstein’s firm through SCOTUSblog, says Goldstein.
The day passes also help. Today, SCOTUSblog correspondent Howe used it to take in the entire oral argument in King v. Burwell, the much-watched case that threatens federal subsidies in 30-odd states that declined to set up their own health-care exchanges. Howe teamed up with a well-coordinated SCOTUSblog team, as Denniston also reported from the press section and two other SCOTUSbloggers took in the proceedings via piped-in audio in the Supreme Court’s lawyers’ lounge.
Friday, March 06, 2015
See you Monday
Wednesday, March 04, 2015
Cooperating witness killed in Haiti
Oriel Jean — the former security chief of ex-President Jean-Bertrand Aristide and whose testimony in U.S. courts a decade ago helped take down key figures in Haiti’s drug trafficking underworld — was shot to death Monday in Port-au-Prince.
Haiti National Police Spokesman Gary Desrosiers confirmed Jean’s murder between the Delmas 29 and 30 neighborhoods not far from the international airport. Desrosiers said he was shot twice by three men on a motorcycle. News of Jean’s death and photos of his bullet-riddled body lying face down in a pool of blood on the street quickly spread through social media.
A friend of Jean’s who declined to be named for fear of reprisals told the Miami Herald that Jean was riding with a Dominican co-worker when the vehicle was struck from behind by a motorcycle. Jean was gunned down after he stepped out of the vehicle to check the damage.
“Nothing happened to the Dominican guy. [Jean] was the main target,” the friend said.
In 2005, Jean was sentenced to three years in prison in a money-laundering plea deal after helping the U.S. Attorney’s Office convict several Haitians and Colombians of moving tons of Colombian cocaine through Haiti to the United States. Among those convicted were Haitian former top police officers — some of whom are back in Haiti after serving their sentences — and a powerful drug kingpin, Serge Edouard.
Edouard received a life sentence after Jean testified that the drug trafficker gave him and other law-enforcement officials hundreds of thousands of dollars to protect his cocaine shipments to the United States.
At Jean’s November 2005 sentencing, U.S. District Judge Jose Martinez complimented him for his “good work.” In his court testimony, Jean indirectly implicated Aristide and also testified against him before the grand jury. Aristide was never charged and the statue of limitations ran out before U.S. law-enforcement officials could prove that he collected kickbacks from traffickers.
Tuesday, March 03, 2015
11th Circuit investitures
Undeterred by wintry weather, federal appeals court judges gathering in Atlanta this week officially welcomed their two newest colleagues with kind words, food and drink.
A common theme for the separate investitures of Judges Julie Carnes and Jill Pryor was their both having the same last names as more senior members of the U.S. Court of Appeals for the Eleventh Circuit.
"I know if you were here Monday you're tired of names jokes," quipped Chief Judge Ed Carnes at the second of the two ceremonies.
They also have long-standing relationships with the court. Speaking at Jill Pryor's investiture, Judge William Pryor Jr. noted that with the two new additions, seven of the court's 11 active judges once clerked at the court or its predecessor court, the Fifth Circuit. "Becoming a circuit judge was the ultimate way to return here for life," Bill Pryor said.
It has been a running joke that the last names of the two new judges from Georgia would create confusion. The chief judge said he and Julie Carnes had discussed how to minimize the confusion when she joined the circuit court, saying the incoming judge had pointed out that he was five months older than she and suggested they use "Carnes the Elder" and "Carnes the Younger." The chief judge instead has taken to calling his new colleague "Judge Julie."
"If there's any name confusion, it can only benefit me," he added. In welcoming her, the chief judge also said no judge had ever come to the Eleventh Circuit with the 22 years' experience as a district court judge that she brings. "We have never had a more qualified and experienced person," he said.
Chief Judge Thomas Thrash Jr. of the Northern District of Georgia also spoke, along with Willis Whichard, a former North Carolina Supreme Court justice who investigated Julie Carnes' qualifications for American Bar Association committee that rates judicial candidates. (She received a "unanimously well qualified" rating.) Thrash said his former colleague "was totally dedicated to doing what was in the best interests of the court."
Judge Julie Carnes referred to the chief as "Chief Judge Ed" and "my doppelgänger." She recalled how confusion between her and Ed Carnes began long ago, when she was being vetted for the district court job in the early 1990s. Her father, the late Fulton County State Court Judge Charles Carnes, saw a headline that read, "Carnes Being Considered for Eleventh Circuit." Not realizing the headline referred to Ed Carnes, instead of his daughter, her father "was thrilled ... then he started reading."
She also noted that a judge from another circuit apparently confused the two at one point, quoting an opinion written by Ed Carnes but referring to the judge by a female pronoun. And, in her own moment of self-deprecation, she said that she had stopped correcting lawyers who approached her at bar events and praised her writing style.
Julie Carnes said joining the appellate court amounted to a "homecoming," noting she had witnessed her first oral argument in the building that now houses the Eleventh Circuit when she was clerking for then-Fifth Circuit Judge Lewis Morgan, and delivered her first oral argument there, as well. She recalled that her father had briefly worked as a mail sorter in the building, which used to be a post office. "What a great country we live in," she said.
After Carnes' investiture on Monday afternoon, the judges remained in town for en banc oral arguments and meetings, returning to the en banc courtroom for another investiture late Wednesday afternoon.
Monday, March 02, 2015
Terrorism cases make bad law
Prosecutors have taken the rare step of asking a federal judge to shut out the public during the testimony of two FBI undercover employees at an upcoming Miami trial of a Kenyan man accused of funneling money to al-Qaida splinter groups.The public, including the media, would be allowed to watch their testimony on closed circuit TV in a separate room in the downtown courthouse — but their images would be obscured in some manner during the terrorism trial.Prosecutors also want to allow the witnesses to be lightly disguised, such as wearing a closely cropped beard and black-rimmed glasses. One CIA officer did that during the 2007 Miami trial of al-Qaida recruit Jose Padilla. And they want the witnesses to use undercover pseudonyms to protect their true identities.The goal, sought by the FBI, is to safeguard the bureau’s counterterrorism operatives and investigations.“The defense shall be prohibited from asking any questions seeking personal identifying information from or about the [undercover employees],” the U.S. attorney’s office requested in a motion filed in February.The defense attorney for Mohamed Hussein Said, arrested in his native country after being targeted by an Internet sting operation based in Miami, views the government's demands as a violation of her client’s constitutional right to a fair trial — akin to a star chamber.Miami attorney Silvia Piñera-Vazquez countered in a court response that the “government’s actions in this case are eerily similar” to the prosecution described in Franz Kafka’s The Trial.In the classic 1937 novel, the attorney noted last week, “a bank teller was arrested and prosecuted by a remote, unidentified authority, of an unidentified crime, by unidentified witnesses, and eventually executed.”Piñera-Vazquez argues that expelling the public from the courtroom during the testimony of the “secret” witnesses and prohibiting any questions about their true identity “insulates” them from “any meaningful cross-examination, thus creating a unilateral, secret prosecution.”Last year, at a federal terrorism trial in Tampa, a judge fashioned a compromise after the Tampa Tribune objected to the prosecution’s efforts to bar the public during the testimony of an undercover employee. The arrangement allowed for an open courtroom, but with the employee testifying behind a screen so that no one in the gallery could see the witness.
Thursday, February 26, 2015
Mary Barzee Flores nominated to District Bench
Mary Barzee Flores: Nominee for the United States District Court for the Southern District of Florida
Mary Barzee Flores has been a shareholder at Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. since 2011, where her practice consists of complex commercial and employment litigation. From 2003 to 2011, she served as a circuit judge on the Eleventh Judicial Circuit of Florida in Miami, where she presided over both criminal and civil matters. Prior to joining the bench, she worked in the Federal Public Defender’s Office of the Southern District of Florida from 1990 to 2003, serving first as an Assistant Federal Public Defender and then as a Supervisory Assistant Federal Public Defender. She began her career as an associate at Sonnett, Sale and Kuehne, P.A. She received her J.D. cum laude from the University of Miami Law School in 1988 and her B. Mus. from the University of Miami School of Music in 1985.
One fish, two fish
A narrowly divided Supreme Court on Wednesday sided with a Florida fisherman, throwing out his conviction for tossing evidence — undersize grouper — back into the Gulf of Mexico under a federal law aimed mostly at white-collar crime.
The fisherman, John L. Yates, was convicted of violating the Sarbanes-Oxley Act of 2002, which imposes a maximum sentence of 20 years for the destruction of “any record, document or tangible object” in order to obstruct an investigation.In two opinions, five justices accepted Mr. Yates’s argument that fish were not the sort of tangible objects with which the law was concerned. Their analysis was based on a close reading of the words and structure of the law.The case arose from a 2007 search of the Miss Katie, Mr. Yates’s fishing vessel. A Florida field officer, John Jones, boarded it at sea and noticed fish that seemed less than 20 inches long, which was under the minimum legal size of red grouper at the time.Mr. Jones, an officer with the Florida Fish and Wildlife Conservation Commission and a federal deputy, measured the fish and placed the 72 he deemed too small in a crate. He issued a citation and instructed Mr. Yates to take the crate to port for seizure.But Mr. Yates had the fish thrown overboard and replaced with larger ones. A second inspection in port aroused suspicions, and a crew member eventually told law enforcement officials what had happened.Mr. Yates was prosecuted under the financial fraud law, which was enacted after the collapse of Enron, the giant energy company. He was convicted and sentenced to 30 days’ imprisonment.Justice Ruth Bader Ginsburg, writing for four justices, seemed to concede that the term “tangible objects” might in some settings encompass fish.“Ordinarily,” she wrote, “a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.”In announcing her opinion from the bench, Justice Ginsburg used more colorful language. “Fish one may fry,” she said, “but may one falsify, or make a false entry in the sea dwelling creatures?” Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Sonia Sotomayor joined her opinion.
The opinion is U.S. v. Yates. Even though Kagan dissented, I like this passage:
Still and all, I tend to think, for the reasons the plurality gives, that §1519 is a bad law--too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I'd go further: In those ways, §1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
Wednesday, February 25, 2015
Summary of the en banc arguments
It was a fun and interesting experience.Backed by groups concerned about government intrusion on privacy, a criminal defense attorney on Tuesday asked a federal appeals court to put the brakes on the warrantless acquisition of cellphone company records that can help identify a phone user's location.Several of the 11 judges hearing the case seemed concerned about what a ruling for the government might mean as technology evolves and gives law enforcement more tools. But, backed by apparent allies on the U.S. Court of Appeals for the Eleventh Circuit, a Justice Department lawyer tried to steer the court from broader implications to the specific issue at hand.All three arguments heard en banc Tuesday morning were lively, with justices interrupting one another, sometimes trying to answer questions posed by colleagues to the lawyers. The other two cases, also out of Florida, were a criminal matter in which the defense lawyer had been out of the courtroom for several moments of the trial, and a civil rights lawsuit over the raid of a barbershop.But it was the argument over cell site location data that has drawn amicus briefs from groups such as the American Civil Liberties Union, the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers and the Reporters Committee for Freedom of the Press. They all backed the defense position that the warrantless gathering of such data is unconstitutional. Cell site location data generally will show which cellphone tower is closest to a customer when he or she makes or receives a call, as well as the direction of the user from the tower.***Arguing for the defense on Tuesday, Miami lawyer David Markus began by reminding the judges that when the federal statute at issue was passed in 1986, cellphones cost about $3,000 each and were the size of a briefcase. There were only 1,000 cell towers in the United States, he noted.In contrast, he said, "Everyone has a cellphone now." Markus invoked Chief Justice John Roberts' remark in a recent cellphone privacy decision that a visitor from Mars would think the devices were an appendage to the human body.One thing hasn't changed, said Markus: "A warrant is required for the long-term monitoring of our citizens."He added that case law doesn't say that everything held by third parties, such as online photos or data in a drop box, is fair game for government monitoring.Judge Frank Hull urged Markus to focus on the facts of his case, eliciting his agreement that the content of communications wasn't at issue. But Markus managed to make the point later that although the cell site technology at the time it was used in Davis' case might identify a person's location within only about a mile, the technology now can place someone within a few meters.Markus also argued that the government had probable cause to look at only seven days of cell site locations for Davis but obtained an order for 67 days of data. "They can get them," Markus said of the cell site data. "They just need a warrant."Amit Agarwal of the U.S. attorney's office in Miami argued for the government. He noted that many types of records that reveal more about a person than cell site data, such as credit card statements, bank records, medical records and airline manifests, may be obtained by the government through a mere subpoena.Hull responded that the prosecutor's point showed that the Stored Communications Act raised the bar for government action by requiring a court order for cell site data.Judge Adalberto Jordan, who frequently presses lawyers to address hypotheticals, asked Agarwal whether the government's position would change as technology evolved. What if, the judge asked, the cell site data could pinpoint a person's location within 6 inches, or if the location information were available if a person merely had his phone turned on but didn't otherwise use it? Technology moves much faster than courts, Jordan added.Agarwal maintained that in those instances the government likely still could obtain the information without a warrant supported by probable cause, if it otherwise complied with the procedural requirements of the federal statute. But he said the court could write an opinion addressing the issue posed by Davis' case while reserving judgment on the more difficult issues posed by Jordan."So you want to punt," Jordan responded, adding that Agarwal's response "brings in the whole specter of Big Brother.""It is troubling, your honor," Agarwal responded, saying he wasn't asking the judges to permit continuous government tracking without judicial supervision.Hull suggested she wasn't interested in hypotheticals: "It would be great to do other cases," she chimed in, "but this one is hard enough."Martin was the lone member of the original panel who heard the case on Tuesday, as full court hearings do not include visiting judges, and a senior judge who sat at the panel has the discretion whether or not to participate. She indicated she was concerned about the implications of a ruling for the government, noting a government witness had testified about where Davis had slept.She pressed Agarwal on a series of hypotheticals about government monitoring of email and website usage. "This case is a great example of how much you can know about somebody from metadata," said Martin.While saying he didn't have all the answers, Agarwal said the government didn't quarrel with the notion that people have an expectation of privacy in their communications. But he said the cell site location data involved only the "routing" of communication, not the content.During Markus' rebuttal time, Chief Judge Edward Carnes prompted the defense lawyer to make the case that the good faith exception employed by the panel should not apply, particularly in light of a Fifth Circuit ruling that the warrantless collection of cell site data was constitutional. Markus said rulings from the Third Circuit and some district court judges had put prosecutors on notice that they were proceeding at their peril that their efforts would be deemed unconstitutional.After Markus returned to his main point on the constitutionality of the federal statute's application, Judge William H. Pryor suggested that perhaps Congress was best equipped to address issues of changing technology. Markus replied that it might take awhile for Congress to act, noting Congress hadn't done anything on the issue in 30 years."That's why we have courts to step in and put a check on the government," said Markus.One thing that Tuesday's en banc session didn't provide was insight into the court's newest judges from Georgia, Julie Carnes and Jill Pryor. Although Robin Rosenbaum, a Florida judge confirmed to the court earlier this year, was active in defending the pro-plaintiff opinion she authored for a 2-1 panel in the barbershop case, the two new judges from Georgia were silent.
Monday, February 23, 2015
Tuesday is en banc day at the 11th Circuit
U.S. v. Alexander Roy (is it structural error when defense counsel is not present for a period of a trial -- panel said yes)
U.S. v. Quartavious Davis (is a warrant required for cell site location data -- panel said yes)
Berry v. Leslie (did the SWAT team violate the 4th amendment for storming a barbershop for licensing violations -- panel said yes)
Should be interesting to see how the "new" 11th Circuit will address these three important cases.
Full Disclosure -- I am arguing for Mr. Davis in the second case.
Friday, February 20, 2015
Should the word limit in appellate briefs be reduced?
Here is the intro from Howard Bashman's (from How Appealing) comment against the rule:
The observation “if it ain’t broke, don’t fix it” properly appears to
inform this Committee’s approach to amending the Federal Rules of
Appellate Procedure. As the Committee’s draft minutes from its April 2014
meeting reflect, “Mr. Letter suggested [that] traditionally the Rules
Committees do not amend a rule unless there is a very good reason to do
so.”
I am submitting this public comment because in my view “a very
good reason” does not exist for reducing the FRAP principal brief word
count limit from 14,000 words to 12,500 words, nor should any of the
corresponding briefing word limits be reduced by that ratio.
As members of the Committee are aware, in addition to my own
appellate practice, I devote a substantial amount of my time to drawing
public attention to the very best examples of appellate advocacy. In my
own writings, both on my widely read appellate blog and in my monthly
columns published in The Legal Intelligencer, I have repeatedly urged
attorneys who brief and argue appeals to strive for concision and to pursue
the fewest and strongest issues possible.
Wednesday, February 18, 2015
Judge Pryor writes the majority opinion and the concurrence...
Tuesday, February 17, 2015
Anthony Bosch to be sentenced today (UPDATED WITH SENTENCE)
As soon as I hear something, I will post Judge Gayles' sentence of Bosch. Here's the Herald's preview article:
Anthony Bosch, the fake doctor who sold illegal muscle-building steroids to Major League Baseball stars and high school athletes, is hoping for a slight break on his prison sentence Tuesday when he faces a Miami federal judge.
How much? Six months.
If U.S. District Judge Darrin Gayles goes for it, the convicted 51-year-old Coral Gables steroid dealer could receive roughly 3 1/2 years in prison. Bosch, who has been free on bond while receiving treatment for his cocaine addiction, pleaded guilty to a single distribution-conspiracy charge in October.
Under federal sentencing guidelines, he faces between 41 months and 51 months in prison. At this point, prosecutors have agreed to recommend the lower end. Bosch’s defense lawyer is seeking even less.
Monday, February 16, 2015
RIP Irwin Block
Irwin Block was old school. 87 years old and still going to work. He loved the law. He loved being a lawyer. He loved being a trial lawyer. And make no mistake about it. Irwin was not a litigator. He was a trial lawyer. And he was extraordinary in trial. Even opposing counsel in a trial would sometimes find themselves becoming spectators, watching with admiration as Irwin held the witness and the jury in the palm of his hand.
Many of you know that Irwin Block (together with Phil Hubbart) represented Freddie Pitts and Wilbert Lee, two black men charged with murder in St. Joe, Florida in 1963. As a result of the efforts of Irwin and Phil, and those of Pulitzer-Prize winning journalist Gene Miller, Pitts and Lee were pardoned after twelve years on death row for murders they did not commit.
Irwin Block was involved in many high-profile cases over the course of his exceptional career. But for all his talents as a trial lawyer, Irwin was a humble man. He never sought the limelight, and bristled at the notion that he should ever be honored for just doing his job. But honored he was, including the American Jewish Congress’ Judge Learned Hand Award, History Miami's Legal Legend Award, and the DCBA’s David W. Dyer Professionalism Award.
Irwin was more interested in fighting for clients than fighting for causes. Old school indeed. He taught me much about being a trial lawyer. I’ll never forget his cardinal rule: “You can’t always outsmart the other side. But you can always out-prepare them.” As good as he was in trial, he was even better in pretrial strategy, motions and deposition. He won hundreds of cases that would never see the light of a courtroom because of the damage he had done in deposition and pretrial motions. Irwin left a legacy of excellence. Each of us who knew him, who worked for him, who worked with him, who learned from him, has a profound respect that is difficult to explain in words. But here’s just one example: Nearly every lawyer who worked with him, even after leaving the firm and establishing their own successful practice, would continue to call him Mr. Block when they saw him. They felt it somehow disrespectful to call him anything else. (I must confess that my first draft referred to him only as Mr. Block. I hope he will forgive this final version.)
I’m not just a better lawyer for having known Mr. Block. I’m a better person for having known Mr. Block.
Here's the Herald obit.
The New York Times has an editorial today about how to stop prosecutorial abuse. Mr. Block would have appreciated it.
Friday, February 13, 2015
"We write to express our dismay and outrage over measures taken by the Obama Administration ot facilitate the artificial insemination of Cuban national Adriana Perez, wife of convicted Cuban spy Gerardo Hernandez."
Ah, the spirit of Valentine's Day!
H/T Marc Caputo.
Thursday, February 12, 2015
Should jurors have a say in sentencing defendants?
A federal judge in Cleveland sentenced a Dalton man convicted of child pornography charges Tuesday to five years in prison, a move that frustrated prosecutors who pushed for four times that length based, at least in part, on a recommendation from the U.S. probation office.
A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.
Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.
Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.
But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge.
The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.
In addition to citing the juror's various jobs and where they lived, Gwin said the poll "does reflect how off the mark the federal sentencing guidelines are." He later added that the case was not worse than most of the child pornography cases that he sees and that five years "is a significant sentence, especially for somebody who has not offended in the past."
Sullivan objected to the sentence, saying it is based on an "impermissible" survey. He also argued before the sentence was issued that 20 years was justified because prosecutors did not show the jury each one of the images found on Collins' computer.
Why not find out what jurors think of what a reasonable sentence is?
Wednesday, February 11, 2015
You know you've made it when Jon Stewart makes fun of you
In other news, we may be getting close to impeachment proceedings for Judge Fuller:
The House committee responsible for judicial impeachments has asked for a budget increase in case it needs to initiate proceedings against U.S. District Judge Mark Fuller of Alabama, who has been charged with battery.
Rep. Bob Goodlatte, R-Virginia, chairman of the House Judiciary Committee, said this week that the committee may need the extra money to establish an impeachment task force, hire lawyers and conduct an investigation.
Although impeaching Fuller is only a possibility — his colleagues on the federal bench could decide not to recommend that option, or Fuller could resign — the budget request signals Congress is taking steps to prepare for what historically has been a rare but lengthy process.
“We are closely monitoring the recent arrest and ongoing prosecution” of Fuller, Goodlatte told the House Administration Committee on Wednesday.
Joining Goodlatte in presenting the budget request was the panel’s top Democrat, Rep. John Conyers of Michigan.
Fuller, a federal judge in Montgomery since 2002, was charged with misdemeanor battery after an August incident involving his then-wife in an Atlanta hotel room. If he successfully completes a pretrial diversion program of domestic violence counseling and drug and alcohol screenings, his criminal record will be wiped clean.
A five-member panel of federal judges is investigating to decide whether further disciplinary action is needed. If Fuller’s colleagues recommend he be impeached, the process would start at the House Judiciary Committee.
Tuesday, February 10, 2015
Has the Supreme Court tipped its hand on gay marriage?
The Supreme Court’s decision on Monday not to delay same-sex marriage in Alabama offered the strongest signal yet that gay rights advocates are likely to prevail in coming months in their decades-long quest to establish a nationwide constitutional right to same-sex marriage.
The court's decision came with a blistering dissent from Justice Clarence Thomas, who criticized his fellow justices for looking “the other way” as another federal court pushes aside state laws, rather than taking the customary course of leaving the laws in place until the court addresses larger constitutional issues.
Since October, when the Supreme Court refused to hear appeals from rulings allowing same-sex marriages in five states, it has denied requests to stay orders requiring other states to let gay and lesbian couples marry. Largely as a consequence of the court’s inaction, the number of states with same-sex marriage expanded to 37 from 19, along with the District of Columbia, in just four months.
Last month, the court agreed to hear four same-sex marriage cases. They will be argued in April and probably decided in late June.
In dissenting from the unsigned order in the Alabama case on Monday, Justice Thomas, joined by Justice Antonin Scalia, suggested that the court was poised to establish a constitutional right to same-sex marriage, a question the court ducked in a pair of decisions in 2013.
Justice Thomas accused the majority of an “indecorous” and “cavalier” attitude in refusing to maintain the status quo in Alabama at least until the Supreme Court issues its decision in the four pending cases.
Monday, February 09, 2015
The oldest trick in the book...
Two women, dressed in skimpy, "sexy" police officer costumes, allegedly showed up at a prison in Brazil's interior Mato Grosso state on Thursday, according to local media reports.The women talked guards into letting them inside and seduced them, spiking their drinks in the process, according to reports.What happened next is what one might expect when strangers in lingerie appear unannounced at your work place: the guards were found the next morning, naked and handcuffed with little recollection of the night before.And 26 prisoners had escaped from the prison, located in Nova Mutum, a small city near Cuiaba.A spokesman for the Justice Secretariat of Mato Grosso, which oversees prisons, confirmed to CNN that officials found bottles of spiked whiskey and a pair of provocative, police-themed costumes next to the handcuffed guards, who were passed out."We assume that is what the women were wearing when they seduced the guards," spokesman Willian Fidelis said.
In other news, Alcee Hastings just crushed this dude from Texas:
Thursday, February 05, 2015
Big federal bar shindig tonight
I wonder if the judges like going to this thing or whether they dread it....
Wednesday, February 04, 2015
Hell hath no fury....
David Rivera’s former girlfriend repeatedly told a federal grand jury that the ex-congressman was the mastermind behind a complicated campaign finance scheme that landed her and another in prison.
Nearly two dozen times, Ana Alliegro says, she testified that Rivera supplied more than $81,000 used in the crime, that he plotted the cover-up and he then helped her twice escape to a getaway in Nicaragua.
Yet she’s angry that Rivera has yet to be indicted, despite her hour-long Dec. 18 testimony and a mountain of evidence: corroborating witnesses, a trove of emails, a handwritten note from Rivera and even fingerprints. Also, a federal judge last year demanded that Rivera be named in open court.
“Are politicians above the law? I don’t get it,” Alliegro told the Miami Herald in an interview. Rivera, who has long maintained his innocence, couldn’t be reached.
Tuesday, February 03, 2015
Should the Yankees trade A-Rod?
Being the first Hispanic justice of the U.S. Supreme Court isn’t the only characteristic that sets Sonia Sotomayor apart from her colleagues, the 60-year-old native New Yorker told a capacity crowd at the Palm Beach County Convention Center on Monday.
The most obvious differences are entertainment choices. “My colleagues all love the opera,” she said. “I like jazz and dance.”
But, she said, the key distinctions run far deeper.
“I come from a background they don’t,” she said. “It’s not just dancing salsa but a little bit from the passion of my personality.”
That passionate personality, which she said prompted Justice Antonin Scalia to dub her a “bulldog,” stems from her hard-scrabble life growing up in housing projects in the South Bronx as the daughter of Puerto Rican parents. While she got her undergraduate degree from Princeton University and her law degree from Yale Law School, her Ivy League education came from scholarships, not birthright
She recalled cockroaches scurrying across the floor of her family’s “tenement” and mice nestled in boots kept in the bathroom on winter days. “You change, yes, but you don’t become completely someone else,” she said. “You carry with you that background.”
The luncheon speech, sponsored by the Forum Club of the Palm Beaches and the county bar association, attracted a record-breaking crowd of more than 1,200 people.
Shunning a podium, Sotomayor walked among the dozens of tables in the cavernous ballroom, offering her thoughts about TVs in the courtroom, judicial activism and even Billy Joel.
Monday, February 02, 2015
Happy Groundhog Day
Somehow it's already February...
Interesting story last week about Judge Rakoff. He got annoyed and resigned from a forensic panel he was on because DOJ was dictating what evidence would get disclosed to the defense. But DOJ has backed off and Rakoff is back. From the Washington Post:
A federal judge Friday returned to a presidential commission on forensic science after the U.S. Justice Department reversed a decision to bar the panel from discussing changes that would give criminal defendants more information about forensic evidence before their trials, a federal official said.
U.S. District Judge Jed S. Rakoff of the Southern District of New York had resigned in protest Wednesday from the Obama administration panel, accusing the department of placing “strategic advantage [for prosecutors] over a search for the truth.”
However, Acting U.S. Deputy Attorney General Sally Q. Yates invited Rakoff to return, saying she had not been aware the commission had worked openly on its plans for nearly a year.
Yates told the National Commission on Forensic Science that “it seemed only fair” that it “make its determination as to what information should be provided to the Attorney General.”
“This is obviously a critically important issue to the Department,” Yates said. “We take very seriously our obligation to ensure that defendants receive a fair trial.”
A Justice Department official said the initial decision that pretrial evidence discovery rules were beyond the commission’s scope was made by Yates’s predecessor, James Cole, before his departure Jan. 8. The official, who spoke anonymously because he was not authorized to discuss the issue publicly, added that Yates may not agree with the panel’s suggestions.
Rakoff, the commission’s only federal judge, thanked Yates and said he looks forward to a discussion “on the merits.”
Good for Judge Rakoff.
Here in the SDFLA, we have a visitor from the High Court. Justice Sotomayor is speaking in WPB:
U.S. Supreme Court Justice Sonia Sotomayor will be at the Palm Beach County Convention Center today, speaking at a luncheon gathering of the Forum Club of the Palm Beaches and the county Bar Association.
With 1,250 tickets sold, the event is sold out.
Friday, January 30, 2015
The revolution will not be televised
The dignified calm of the U.S. Supreme Court was broken recently when seven protesters, one after another, rose to shout epithets about the growing power of money in American politics — a trend the court has hastened through its rulings.
It was a rare moment of chaos in the court. When the episode ended, Chief Justice John Roberts told spectators, "We will now continue with our tradition of having open court in the Supreme Court."
Roberts' off-the-cuff remark was significant, reminding the public that the nation's highest court is indeed open — and openness can sometimes be messy in a democracy. But as the court continues to add blockbuster cases to its docket, the unfortunate narrow scope of the court's openness deserves scrutiny.
In the next three months, the Supreme Court will hear arguments on three extraordinary landmark issues: same-sex marriage, the future of Obamacare and the constitutionality of lethal injections for capital punishment.
Roberts is correct that the court will be open when those cases are argued — but only to 200 or so members of the public lucky enough to obtain seats. Many will wait in line for days in advance. If past experience is repeated, wealthy individuals who want seats will pay thousands of dollars for others to wait in line for them — an unseemly business that tarnishes the court's image of openness.
Why will only a relative handful of people be able to witness history at the court? Because, as open as it is, the court has long refused to let cameras record or broadcast its proceedings. We have written about this before, but the court's policy continues to amaze people — especially young people, who take transparency and access for granted.
Recent polls have shown strong approval for cameras in the Supreme Court (71%) and record-high agreement that the court should be more open and transparent generally (95%).
The group Fix the Court, which advocates for greater transparency at the Supreme Court, posted an amusing video recently in which random Americans were told that the Super Bowl will not be televised. The interviewees refused to believe it — and, no worries, it will be. But when those interviewed were told that a slightly more important institution — namely, the Supreme Court — is never televised, they were incredulous, and upset.
Thursday, January 29, 2015
Wednesday, January 28, 2015
Warren Lee Hill executed
Here's the NY Times:
The State of Georgia executed a convicted murderer, Warren Lee Hill, on Tuesday night, ending a prolonged legal fight that led to a series of court-ordered reprieves and frequently tested the state’s standards for capital punishment.
The Georgia attorney general’s office confirmed Mr. Hill’s death at a state prison in Jackson, southeast of Atlanta. He was 54.The execution would “live on as a moral stain on the people of this state and on the courts that allowed this to happen,” Brian Kammer, one of Mr. Hill’s lawyers, said shortly before the sentence was carried out.The execution came at the end of a day in which state officials and the federal courts denied Mr. Hill’s final appeals, which focused on claims of intellectual disability and whether Georgia law made it essentially impossible to avoid a death sentences on those grounds.The United States Supreme Court turned down the appeal Tuesday night; the court said Justices Stephen G. Breyer and Sonia Sotomayor had supported issuing a stay of execution. Earlier Tuesday, the State Board of Pardons and Paroles rejected a request for clemency from Mr. Hill, who was sentenced to death for the 1990 murder of another inmate, Joseph Handspike.At the time of Mr. Handspike’s death, Mr. Hill was in prison for killing his girlfriend in 1985.Although Mr. Hill’s appeals sometimes involved questions about Georgia’s lethal injection protocols, his last legal campaign dealt with a contention of an intellectual disability. Mr. Hill, with an I.Q. of 70, had “the emotional and cognitive functioning of an 11-year-old boy,” Mr. Kammer said.“Warren Lee Hill is intellectually disabled,” Mr. Hill’s lawyers told the Supreme Court in a filing. “The lower Georgia courts have said this twice. All of respondent’s experts have acknowledged this fact.” ***
In a ruling announced less than 30 minutes before the scheduled start of the execution, the justices rejected Mr. Hill’s appeal.
Tuesday, January 27, 2015
Surveillance nation
The Justice Department has acknowledged constructing a database to track the movements of millions of vehicles across the U.S. in real time.
The program, whose existence was first reported by The Wall Street Journal, is primarily overseen by the Drug Enforcement Agency (DEA) to combat drug trafficking near the U.S.-Mexico border. However, government emails indicate that the agency has been working to expand the database throughout the United States over the past several years.
A Justice Department spokesman told Fox News that the tracking program is compliant with federal, claiming it "includes protocols that limit who can access the database and all of the license plate information is deleted after 90 days." In 2012, a DEA agent testified before a House subcommittee that the program was inaugurated in December 2008 and information gathered by it was available to federal, state, and local law enforcement organizations.
It is not clear whether the tracking is overseen or approved by any court.