Third Circuit issues incredible order:

This doesn't involve our district or circuit, but I find this order by Third Circuit Judge Theodore McKee absolutely fascinating (h/t How Appealing):

The Court would have granted Petitioners a stay of removal, but was informed that Petitioners were removed earlier today. The government is hereby ordered to use its best efforts to intercept Petitioners when they land tonight in Guatemala City and to return Petitioners to the United States immediately. If the government is unable to intercept Petitioners at the airport, they must locate Petitioners in Guatemala and return them to the United States as quickly as possible. Upon their return, Petitioners are granted a stay of removal pending disposition of their petition for review. If, upon contact, Petitioners inform the government that they do not want to return to the United States, the government shall secure a written memorialization to that effect -- even if that writing is in Spanish.

The only thing that would have made it better is if he would have ordered the return flight to be first class.

Reminder -- don't take a GoPro into Court

This CNN intern learned the hard way yesterday at the Supreme Court:

The Supreme Court of the United States briefly removed media interns from its press room on Monday after a CNN intern was caught recording video footage with a GoPro camera that he had strapped to his chest, the On Media blog has learned.
The episode led to an impromptu meeting among top CNN executives and editors in Washington, a call to the company's legal department, and a profuse apology to the Supreme Court's public affairs team. Recording devices are prohibited from both the Supreme Court Press Room and the adjacent Public Information Office, as well as from the court room generally.
In a statement, CNN said that the intern "misunderstood the rules about recording inside the Supreme Court's Public Information Office and acted inappropriately. We've taken the necessary action to remedy this situation. We profusely apologize to the Court."
The intern, Walbert Castillo, had been assigned to serve as "a runner," relaying the court's opinions from the building to CNN correspondent Ariane de Vogue, who was waiting in the Supreme Court plaza. The process has become known as "the running of the interns," given the speed and intensity of the running-shoe clad youth.
In addition to his runner duties, Castillo had been asked to wear a GoPro camera to record the event for an episode of CNN's digital video series, "Being Moody," hosted by reporter Chris Moody. Castillo kept the GoPro recording while he was in the press room, which was prohibited -- the Supreme Court fears that a recording device may pick up audio of a court decision -- and was forced to turn it off. Castillo and other interns were then briefly removed from the room.

Three published criminal opinions yesterday  -- 1) United States v. Cavallo, per Julie Carnes, a reversal for not allowing the defendant to confer with his lawyer during his testimony; 2) United States v. Williams, per visiting Judge Coogler, an affirmance in a fake check case; and 3) United States v. Frediana, per Judge William Pryor, which addresses the following interesting issue:

This appeal requires us to decide whether hostilities related to the use of military force against terrorists and Iraq, as authorized by Congress, have“terminat[ed]” under the Wartime Suspension of Limitations Act, 18 U.S.C. § 3287. Seven years after Steven Frediani committed the crimes, a federal grand jury indicted him on one count of conspiracy to commit aircraft parts fraud, id. §§ 38(a)(1)(C), (a)(3), and two substantive counts of aircraft parts fraud, id. § 38(a)(1)(C). Frediani moved to dismiss the substantive counts of the indictment as untimely, id. § 3282(a). The district court denied his motion because, when Congress authorized the “use of the Armed Forces,” the Act tolled the statute of limitations for frauds against the United States until the “termination of hostilities as proclaimed by a Presidential Proclamation, with notice to Congress, or by a concurrent resolution of Congress,” id. § 3287. On appeal, Frediani argues that the “hostilities” related to the “use of the Armed Forces” “terminat[ed]” over a decade ago, id., so the Act does not toll the statute of limitations for his crimes. Frediani also argues that the district court abused its discretion when it admitted “other act” evidence under Federal Rule of Evidence 404(b). Because the plain language of the Act requires a Presidential proclamation or a concurrent resolution of Congress to end the tolling of the limitations period and the district court did not abuse its discretion when it admitted the “other act” evidence, we affirm Frediani’s convictions.

No real fireworks from these opinions, unlike the Rosales-Bruno case, which Brian Toth blogged about.  It's really worth a read to see the bubbling hostility between the two factions of the court.  It's insane to me that an 87-month sentence can be reasonable after the court determined that the sentence was incorrectly decided the first time around because of an illegal 60-month enhancement. 

The Supreme Court is dishing out opinions at the end of the Term.  You gotta love Justice Kagan, quoting from comic books in the Spiderman case:

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.

I don't agree though -- if something is wrong, you have a great responsibility to fix it, not to stick to stare decisis.  We have the Supreme Court to improve upon the law when it's messed up.  In that case, everyone agrees that Brulotte makes no sense.  Fix it!

When reviewing sentences, Chief Judge Carnes and Judge Wilson agree on standards, but not always on results

After being convicted for illegally reentering the United States, Jesus Rosales-Bruno appealed against his top-of-the-guidelines-range sentence of 87 months’ imprisonment, urging that his sentence had been based on an improper enhancement. The Eleventh Circuit agreed, vacated the sentence, and remanded for a do-over. “We express no opinion,” the court cautioned, “what sentence would now be appropriate.” Despite that disclaimer, Rosales-Bruno had reason to be optimistic about receiving a lower sentence; without the improper enhancement, a top-of-the-guidelines-range sentence was (only) 27 months’ imprisonment. The resentencing, however, did not go as Rosales-Bruno would’ve hoped. Citing Rosales-Bruno’s criminal history, the district court imposed a major upward variance and sentenced Rosales-Bruno to 87 months’ imprisonment. In short, Rosales-Bruno’s sentence remained the same, even though the way that the district court arrived at that sentence the second time about was different.

These unique facts led to a fascinating set of sharply worded opinions issued Friday by the Eleventh Circuit on how the court goes about reviewing sentences for reasonableness. Chief Judge Carnes, in a 51-page majority opinion, said the sentence wasn’t substantively unreasonable; Judge Wilson, in a 32-page dissent, said it was substantively unreasonable. These opinions touch on or tussle over many important topics—from the weight the guidelines should be given in sentencing, to how deferential appellate courts ought to be in reviewing an out-of-the-guidelines-range sentence for reasonableness, to whether judges who dissent from unpublished decisions can publish their dissents, to which of the judges best uses Mark Twain to support his position. But most notable about United States v. Rosales-Bruno is that both Chief Judge Carnes and Judge Wilson go beyond just the particulars of the case. Each writes at length about the Eleventh Circuit’s sentencing law in general, and the impressions that certain of its current and former judges, and others, have of that law.

Relying heavily on data from the U.S. Sentencing Commission and set forth in three appendixes to his opinion, Chief Judge Carnes begins part V this way:

Part II of the dissenting opinion criticizes this Court as a whole for the message the dissenting judge believes we have sent to district courts about how we review sentences for reasonableness. The dissent’s criticism is not about the legal standards that we have announced or the holdings of our decisions. We made clear in our en banc decision in Irey that the principles we announced in that decision applied equally to sentences above and below the guidelines range. 

The dissent acknowledges that our decisions, particularly Irey, have correctly stated the law. So, we have gotten the law right. 

The dissent’s criticism of this Court is that even though we have gotten the law right, it believes that the results of our substantive reasonableness decisions have sent a message to district courts that we will not vacate unreasonably long sentences, only unreasonable short ones. We are not told whether the accusation is that the Court has done this deliberately or just negligently. In any event, if we have been sending a message that contrary to the neutral principles we have announced we will favor upward variances more than downward ones, either we are not good at sending messages or the district courts of this circuit are not good at receiving them. The irrefutable fact is that district courts in our circuit impose far more downward variance sentences than upward variance ones. And the disparity in the rate at which downward and upward variance sentences are being imposed is increasingly favoring downward variances.

Majority Op. 39–40 (citations omitted).

Part II of Judge Wilson’s opinion takes this view:

We have never vacated a sentence because it was too high, imposing a sentencing ceiling on remand. By contrast, on numerous occasions, we have vacated sentences because they were too low and imposed a sentencing floor. This forces me to believe that we are grading harshness and lenience on different scales. By failing to adhere to Irey and Pugh in this upward variance case, the Majority opinion reinforces this unstated double standard. It is true that we say all sentences are meaningfully reviewed for reasonableness, but in practice, it seems that only lenient sentences are subject to vacatur on purely substantive grounds. The message that we are sending to the district courts by this precedent is that they enjoy virtually unfettered sentencing discretion, so long as they sentence harshly. In other words, while we say otherwise, we are in reality reading a “severity principle” into sentencing that should not be there.”

Dissenting Op. 74–75 (citations omitted).

The third judge of the panel was District Judge Corrigan, who sat by designation. Judge Corrigan stated—wisely—that it was “unwise for [him], as a visitor, to join in the important debate between Chief Judge Carnes and Judge Wilson regarding Eleventh Circuit sentencing precedent.” He concurred only “in the result.”

And for Rosales-Bruno, it is only the result that matters.

Good Graphics?

In recent months, the White House and DoJ have been using graphics and slides on social media and at press conferences to make their points.  The White House has been doing a very good job with this, making clear easy to read graphics.  DoJ, not so much.  Here is a good example of an awful slide that DoJ used yesterday with the big medicare fraud takedown :

Ooof.  This may be one of the worst slides I have ever seen.  Just for starters, it's got way too much information, graphics that don't mean anything, shorthand that is unintelligible, facts that aren't important, and on and on.

Here's how to do a slide, by the White House:

Ahhhh, much better.

These slides were taken from the Twitter pages for the White House and DoJ.

Bueller? Bueller?

Should be an interesting few days in mag court... About 80 people were arrested for Medicare fraud over the last few days, and the PDs and CJA lawyers are having their annual conference in Naples. The PD's office always leaves behind an emergency lawyer, who is going to be very very busy. I wonder who drew the short straw this time.