"not Quam ghu'vam, IoD!"

That's Klingon for, "This will not stand, man!" And it's in the amicus brief arguing that you can't copyright Klingon.

The Recorder has more:

To say the filing is colorful doesn't do it justice. Submitted by Marc Randazza of Las Vegas-based Randazza Legal Group, it is peppered with Klingon sayings­—including a translation of a phrase from the 1998 film "The Big Lebowski."
By the film studio's logic, the brief argues, everyone who translates something into Klingon, writes a poem in Klingon, or gives a speech in Klingon at a Star Trek convention is a copyright infringer. It adds: "not Quam ghu'vam, IoD!" (For the uninitiated, that's: "This will not stand, man!")
Overall, the language group's argument in Paramount v. Axanar, 15-9938, is that Klingon has taken on a life of its own since Paramount commissioned its creation by linguistics professor Marc Okrand in the early 1980s for the film "Star Trek III: The Search for Spock."
Okrand further developed the dialogue from that film into a functioning language and published a dictionary in 1985. Since then, entire groups of people have embraced it—teaching it to their children, exchanging marriage vows in Klingon, and even establishing the Klingon Language Institute, or KLI, which has translated works of Shakespeare into Klingon.
"Given that Paramount Pictures commissioned creation of some of the language, it is understandable that Paramount might feel some sense of ownership over the creation," the brief says. "But, feeling ownership and having ownership are not the same thing."
According to the brief, Paramount has actually claimed the rights to the Klingon language for many years, but has never asserted it in court until now—"most likely because the notion of it is meq Hutlh." (Translation: "it lacks reasons.")
Paramount once threatened to bring suit against the KLI, it says, but the institute avoided a clash by agreeing to license the use of the language.The fight appears to present a novel legal issue for U.S. District Judge Gary Klausner, who is presiding over the case."
Just as 'great men do not seek power, it is thrust upon them,' this court now has the opportunity to weigh in on the copyrightability of language and declare that there is no basis in either law or policy to allow copyright in a spoken language," the brief says, quoting a line from "Star Trek: Deep Space Nine."

 In other news, President Obama has nominated a bunch of new judges, some of which in the Middle District, including William Jung.  Cool!

William F. Jung:  Nominee for the United States District Court for the Middle District of Florida

William F. Jung is a partner at the law firm of Jung & Sisco, P.A. (formerly Black & Jung, P.A.) in Tampa, Florida, which he co-founded in 1993.  He specializes in white collar criminal defense and complex civil litigation.  Prior to starting his own firm, Jung served as an Assistant United States Attorney for six years – first in the Southern District of Florida from 1987 to 1990 and subsequently in the Middle District of Florida from 1990 to 1993.  From 1985 to 1987, he was an associate for the Tampa, Florida office of Carlton Fields Jorden Burt, P.A.  From 1984 to 1985, he served as a law clerk to then-Justice William H. Rehnquist of the Supreme Court of the United States.  Jung began his legal career as a law clerk to the Honorable Gerald Tjoflat of the United States Court of Appeals for the Eleventh Circuit.  He received his J.D. summa cum laude from the University of Illinois College of Law in 1983 and his B.A. magna cum laude from Vanderbilt University in 1980.

Sarah Bujold selected for the UM School of Law Stuart A. Markus award

Friends and readers of the blog know that my family set up an award in my Dad's name at the University of Miami School of Law three years ago.  The Stuart A. Markus Award recognizes an individual student each year for outstanding work in one of the School of Law’s in-house clinics. The winner is selected by vote of the in-house, live-client clinic directors.  The first award went to Bethany Bandstra.  And last year went to Lindsay MacDonald.

This year the Markus Award went to Sarah Bujold. Sarah’s work and professionalism in the Health Rights Clinic were truly outstanding and distinguished her even among the other nominees for the award. Over the course of the academic year, she successfully argued two hearings before Social Security judges, securing past-benefit awards for two clients—totaling more than $50,000—in addition to their ongoing entitlements. She also filed and argued two administrative appeals before U.S. Citizenship and Immigration Services, drafted a petition for a writ of mandamus to the Florida Supreme Court, and sued USCIS, prompting the agency to grant her client naturalization. All of this was in addition to Sarah’s maintaining a regular caseload, securing healthcare entitlements and immigration relief for her clients and serving as a guardian ad litem for children in dependency proceedings in Monroe County. Sarah has made real contributions to class discussions, especially on issues of ethics and ethical judgment. She drafted a presentation about her experiences that was accepted by the International Journal of Clinical Legal Education and the Association for Canadian Clinical Legal Education, and she will be presenting this summer in Toronto at the International Clinical Legal Education Conference.

Super Impressive.

My dad practiced law in Miami for over 50 years.  Throughout his career, he fought hard for his clients in every area of the law.  He never turned away a person in need, and helped countless people with practical, hands-on advice and representation that went far above and beyond the norm.  The Markus Award is given annually to a student who shares that caring spirit, and who has made a meaningful difference in someone’s life – which is something my dad did every day.

Congratulations to Sarah!

"That hasn’t happened in quite some time.”

That was Justice Ginsburg after she was referred to as Justice O'Connor during an oral argument today in United States v. McDonnell. (via The Washington Post).

OOF!

Well, that's better than being called a "serial child molestor" when your previous title was Speaker of the House:

An Illinois federal judge on Wednesday sentenced former U.S. House Speaker Dennis Hastert, once second in line to the President of the United States, to 15 months in prison and two years of supervised release after Hastert admitted hiding hush money he paid to cover up his sexual abuse of teenage boys on the Yorkville high school wrestling team.

U.S. District Judge Thomas Durkin called Hastert a "serial child molester" as he imposed the sentence for dodging federal banking laws following a wrenching hearing in Illinois federal court. Hastert also must undergo treatment as a sex offender and pay a $250,000 fine to go toward a criminal victims' fund.

"Some actions can obliterate a lifetime of good works," Durkin said.

Hastert. the former high school teacher and wrestling coach who was elected to Congress in 1986, said Wednesday he was "deeply ashamed" for having "mistreated" some athletes he coached. "For 11 months, I have been struggling to come to terms with events that occurred almost 40 years ago," Hastert said.

Mistreated?  Mistreated?!  That doesn't sound like acceptance of responsibility...

Two defense opinions in the 11th Circuit written by...

... William Pryor.

1) United States v. Jimenez-Antunez:

This appeal presents a question of first impression in this Circuit: whether a criminal defendant must show good cause to dismiss retained counsel if the defendant intends to seek appointed counsel. Gabriel Jimenez-Antunez pleaded guilty to conspiracy to distribute methamphetamine and conspiracy to commit money laundering. Weeks before his sentencing hearing, Jimenez-Antunez sent a letter to his retained counsel expressing an intent to dismiss him. His retained counsel then moved to withdraw and stated that his client would request appointed counsel. The district court denied the motion on the ground that Jimenez-Antunez had been afforded effective assistance of counsel by his retained counsel. Because a criminal defendant need not show good cause to dismiss retained counsel, we vacate and remand for further proceedings.

2) Norris v. United States:

This appeal requires us to decide whether the district court erred by denying an evidentiary hearing for Harrison Norris’s motion to vacate, 28 U.S.C. § 2255, which alleged that his conviction violated the Due Process Clause because his trial judge was biased against him and mentally incompetent. Norris, a black man, was convicted of forcing women, many of whom were white, into prostitution. Judge Jack Camp presided over Norris’s trial and sentenced him to life in prison. We vacated that sentence as an impermissible general sentence. On remand, a different judge sentenced Norris to 35 years of imprisonment. Three years after Norris’s trial, Judge Camp was arrested for illegal possession of drugs and a firearm. The United States disclosed that Camp had bipolar disorder and had suffered a brain injury from a bicycling accident. The investigation also disclosed allegations of racial bias. One witness alleged that Camp wanted to give all black men who pimped white women the maximum penalty and that Camp specifically disliked Norris. Because Norris sufficiently alleged that Judge Camp was actually biased against him, we reverse and remand for an evidentiary hearing.

zzzzzzzzzzzzzzzzzzz (UPDATED -- WAKE UP!)

For the zzzzzzzzz posters out there, check out Justice Thomas during oral argument last week:

look at this drawing from SCOTUS oral arguments yesterday pic.twitter.com/eSTR9IiEfN

— sarah jeong (@sarahjeong) April 22, 2016

UPDATE -- WAKE UP!! -- Paul Rashkind, appellate guru from the FPD's office, is headed back to the Supreme Court. Cert granted this morning in Manrique v.United States. Here's the 11th Circuit opinion.

The QP is: Should the Court grant certiorari to resolve the significant division among the circuits concerning the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely appeal of a criminal judgment imposing sentence, a question left open by the Court’s decision in Dolan v. United States, 560 U.S. 605, 618 (2010).

FBI does not trust prosecutors

For real.  Check out this USA Today article by Brad Heath, which says that the FBI did not want to share its tech secrets with prosecutors because they might become defense lawyers one day:

The FBI guards its high-tech secrets so carefully that officials once warned agents not to share details even with federal prosecutors for fear they might eventually go on to work as defense attorneys, newly disclosed records show.
A supervisor also cautioned the bureau’s “technically trained agents” in a 2003 memo not to reveal techniques for secretly entering and bugging a suspect’s home to other agents who might be forced to reveal them in court. “We need to protect how our equipment is concealed,” the unnamed supervisor wrote.
The records, released this year as part of a Freedom of Information Act lawsuit, offer a rare view of the extent to which the FBI has sought to keep its most sensitive surveillance capabilities secret, even from others within federal law enforcement. That secrecy remains a common feature of the FBI’s most sophisticated investigations, including recent cases in which it cracked the encrypted iPhone of one of the gunmen in last year’s San Bernardino terror attacks and breached the anonymous Tor computer network.

Meantime, John Pacenti and the PBP have continued to cover the zoo story.  The zoo has taken some very strange positions about what information it will release about the tiger and the zookeeper:

Zoo spokeswoman Naki Carter declined to answer questions about Konwiser’s death during a news conference Wednesday at which she announced the creation of a fund in her memory and the renaming of the zoo’s annual Save the Tigers 5K race in her honor.
The Palm Beach Post reported Tuesday that the tiger that killed Konwiser is a 13-year-old stud breeder named Hati, one of four at the zoo and one of 250 Malayans in existence. The zoo has declined to identify the tiger, saying that it could place the animal in danger.
Moments after The Post published an online story Tuesday naming Hati as the tiger that killed Konwiser, the zoo released a statement asking that media outlets refrain from identifying the animal.

Finally, Slate crushes the lawyering in the Supreme Court yesterday concerning DUI testing:

 The justices of the United States Supreme Court are at their best when united against a common foe. It’s much easier to put aside doctrinal differences and work together when an attorney at the lectern sounds like a clodhopping amateur trying out for the moot court team. On Wednesday, in a critically important Fourth Amendment case, not one but two advocates performed so terribly that the justices effectively gave up and had a conversation among themselves. The result was a deeply uncomfortable 70 minutes during which the clash between state power and individual autonomy took a back seat to jokes about night court and hillbilly judges.

Judge Martin rocks

She is so great.  Check out her concurrence today in U.S. v. Robinson:

I agree that Troy Robinson cannot benefit from Johnson v. United States, 576
U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the
residual clause. I write separately to note that Mr. Robinson is one of dozens of
prisoners who has tried to file similar applications based on Johnson. Prior to
yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144
(Apr. 18, 2016), all these applicants were turned away from our Court not because
Johnson wouldn’t benefit them but because our Court held that Johnson could not
apply in these cases. Some of those who filed applications in other courts have
already been freed because they were serving an unconstitutional prison sentence.
As best I can tell, all the prisoners we turned away may only have until June 26,
2016, to refile applications based on Johnson. See Dodd v. United States, 545 U.S.
353, 359, 125 S. Ct. 2478, 2482–83 (2005).
Although I have not taken the time to investigate the merits of these cases,
below is a list of every case I know of in which this court denied an application from
a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on
Johnson. I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications. I
have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the
guidelines were mandatory together with those for which the guidelines were
advisory). I have also listed the district court in which each sentence was imposed,
to the extent Federal Public Defender and U.S. Attorney offices are monitoring these cases.

She then goes on to list 110 cases.  

State shenanigans

Rumpole and Ovalle cover Jackie Schwartz's bar issues.  Here's Ovalle:

“You are a f---ing idiot, you don’t know who I am,” County Judge Jacqueline Schwartz yelled at a waiter at a Miami Greek restaurant after she was refused more alcohol, according to a state investigative report released on Monday. It also quotes the judge calling police officers “pigs” when they were were summoned to the restaurant on March 18.
 The investigation for the Florida Judicial Qualifications Commission on Monday recommended that Schwartz be suspended. Ultimately, the Florida Supreme Court will decide what, if any, punishment she deserves.
 Her lawyer, Jeffrey Feiler, told the commission this month that she was not drunk but under the influence of a new prescription medication.
Schwartz has been on “paid medical leave” since she was sent home from the bench on March 28.

It’s the second time that a state judicial oversight board has questioned Schwartz’s behavior and salty language.
In December, the Florida Supreme Court scolded Schwartz after she told a store owner to “go f--- yourself” during a heated re-election campaign in June 2014. She was angry over an oversized campaign sign posted at the story for her opponent. She was suspended for 30 days and had to pay a $10,000 fine.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article72521987.html#storylink=cpy

Sad story.  Here are the formal charges.

Meantime, I miss John Pacenti on our beat.  He's now with the PBP and does a great job covering the awful zoo story:

The timeline of when and how the tiger encountered Konwiser remained hazy on Monday as a spokeswoman for the zoo did not return a phone call to answer questions after chastising the media on Sunday for speculation that the tiger in question would be euthanized. It remains at the zoo and has not been identified other than its sex.
What is known is Konwiser was mauled while performing routine tasks in the “night house,” which is not viewed by the public but is adjacent to the new tiger exhibit.
The area was monitored by video cameras and the zoo has not said how Konwiser died, whether she was in the enclosure with the big cat or if a latch malfunctioned on the door.
The energetic lead keeper was minutes away from giving a “tiger talk” to the patrons in what would have been one of her last official acts for the zoo. A spokesperson for the U.S. Food & Drug Administration told the Palm Beach Post’s news partner, WPTV News Channel 5, that she was to begin as consumer safety officer with the FDA in Maitland on May 1.

SCOTUS happenings (UPDATED)

Everyone is wondering why SCOTUS decided to announce an opinion this morning when it wasn't previously scheduled.  Whisper is that it might be Welch, the retroactivity case on the ACCA.  Check in with SCOTUSblog for more.

Update 10:14am -- Yup, it was Welch.  7-1 decision per Kennedy saying Johnson is retroactive, reversing the 11th Circuit (which had denied the certificate of appealability).

Clarence Thomas is coming to HBO.  Apparently it isn't going to be flattering.

Former Broward Teacher's Union president Pat Santeramo was sentenced Friday to five years by former federal prosecutor Jeffrey Levenson. From the Sun-Sentinel:

Santeramo, who had asked Broward Circuit Judge Jeffrey R. Levenson for leniency, faced a maximum penalty of 55 years after he was convicted in January of money laundering, organized scheme to defraud and violating campaign contribution laws.

"I ask you when making your final decision to consider the good that I have done throughout my life and not just this snapshot in time," Santeramo said.
But prosecutor David Schulson said while Santeramo doesn't deserve the maximum sentence, his actions weren't a momentary lapse of reason.
"Santeramo made the choice to steal from BTU funds," Schulson said, citing trial evidence that the union head received 30 payments from 2006 until 2011 from general contractor David Esposito, who testified against Santeramo in exchange for immunity. "It is crystal clear based on the evidence that not a single dollar of BTU funds would have been stolen without the knowledge and participation of Pat Santeramo."
Santeramo was a music teacher from 1978 until 1995, when he began working for the union full time. He became president of the union in 2001 after the previous president, Tony Gentile, was arrested on child pornography charges. Santeramo served as president for 11 years.

Jurors took eight hours over two days to find Santeramo guilty of all charges against him except for one – an allegation that he misused his union-issued gasoline card for personal business.

"It confounds the court and I must ask why," Levenson said. "Why over these years did you abuse the trust of the union that you were so devoted to and that you so loved?"
Former Broward Teachers Union president Pat Santeramo found guilty of corruption
Former Broward Teachers Union president Pat Santeramo found guilty of corruption

Schulson asked Levenson to sentence Santeramo to a 10-year term; Levenson decided on half that. "Hopefully this will be a note for those who are in those positions of trust to take those positions of trust seriously" Levenson said.

Another pitch for cameras

David Ovalle has taken up using Periscope in state court, posting short video clips of court proceedings on Twitter. It's actually a great service to court watchers and it's very interesting. Of course the feds are way too crusty to allow anything like that, which is a shame. Just to get into the federal courthouse has become a burden, with people being turned away for random reasons. Instead of a courthouse, it's beginning to feel like a fortress.

Some news from the 6th, 7th & 8th Circuits:

Add the 6th Circuit to the list of courts getting the cell-site data case wrong.

The 7th Circuit addresses strip club ordinances: "This case requires us to visit the world of strip clubs—establishments that no one seems to want, officially, but that are somehow quite lucrative."

And the 8th Circuit discusses Halliburton and securities laws.  It's a pretty interesting read.  Here's the Reuters analysis:

After several years of litigation, U.S. District Judge Donovan Frank of St. Paul, Minnesota, certified a class of Best Buy shareholders. Investors could not bring fraud claims based on the Sept. 14 press release, the judge said, because it was a forward-looking statement covered by the safe-harbor provision in securities laws. But he ruled statements during the analyst call about the company’s present performance were not protected by the safe-harbor provision. Judge Donovan found that lead counsel from Robbins Geller Rudman & Dowd had established the price impact of the alleged misrepresentations by showing the sharp drop in Best Buy’s stock price when the supposed fraud was revealed in December.
On Tuesday, a divided three-judge panel at the 8th U.S. Circuit Court of Appeals reversed that class certification decision. The court’s opinion is the first federal circuit court analysis of the U.S. Supreme Court’s 2014 ruling in Halliburton v. Erica P. John Fund – and it’s quite a boon for defendants in securities class actions. Best Buy’s lead counsel, Joseph McLaughlin ofSimpson Thacher & Bartlett, called the decision “a blueprint” for securities defendants hoping to capitalize on the Supreme Court’s decision.

Comments?

So Above the Law has decided to nix comments permanently.  What do you think?


I can't get the poll to work here, so click on this link to vote.

Above The Law has gotten rid of comments. Should SDFLA Blog delete comments?

Above The Law has gotten rid of comments. Should SDFLA Blog delete comments?

Yes, the comments are offensive.

Yes, the comments do not add anything.

Yes, unless they are willing to sign their name.

No, the comments are entertaining.

No, who cares. Let people say what they want.

pollcode.com free polls

"I barely have clout in my own court as a senior judge, much less clout in somebody else's court."

That was Judge Huck commenting on whether he would get any special breaks in small claims court.  The DBR has more:

Small claims court might not be the place you'd expect to see a host of heavy hitters in the Miami legal community.
But a Miami-Dade County Court tussle over a $75 fee at the exclusive Riviera Country Club has a "who's who" list of plaintiffs, including a federal judge, a state appellate judge and high-profile attorneys.
U.S. Senior District Judge Paul Huck and Third District Court of Appeal Judge Frank Shepherd are the first two named plaintiffs on the lawsuit against the Coral Gables club.
The judges and the four other plaintiffs, all self-represented, are suing the club to resolve a dispute about senior membership, which is available to club members over 70 who have been members for at least 25 years. The complaint seeks a declaratory judgment and seeks no damages.
...The other plaintiffs, who are or expect to be senior members, include attorneys Raul Valdes-Fauli of Fox Rothschild in Miami, Abigail Watts-Fitzgerald of Devine Goodman Rasco Watts-Fitzgerald in Coral Gables and solo practitioner Philip Brawner of Coral Gables.
Senior members of the club are not allowed to vote on club matters, but the club agreed to freeze their dues and never charge them future assessments, according to the Feb. 1 complaint.
The club is calling the $75 monthly charge a capital fee, but the plaintiffs contend it's an assessment and they shouldn't have to pay it.

Tough sentencing hearing

What should a judge do when a jury completely rejects the government's case (acquits of all felony charges) but convicts of a sole misdemeanor count?  This issue came up at yesterday's sentencing of former Massey CEO Don Blankenship. The case involved allegations of a cover up of an explosion that killed 29 people. The judge gave the maximum 1-year sentence.  From the AP:

Standing before a federal judge, former coal company executive Don Blankenship expressed sorrow for the families of 29 men killed in his coal mine six years ago but contended that he committed no crime.
"I just want to make the point that these men were proud coal miners. They've been doing it a long time. And they'd want the truth of what happened there to be known," Blankenship said Wednesday, drifting closer toward mentioning his theory that an act of nature, not negligence, caused the deadly explosion in his mine.
The judge told him to stop talking about the explosion and handed down the stiffest sentence allowed for his misdemeanor conviction: one year in prison and a $250,000 fine. ***
A federal jury convicted Blankenship on Dec. 3 of a misdemeanor conspiracy to violate mine safety standards at Upper Big Branch. The jury acquitted him of felonies that could have extended his sentence to 30 years.
The trial wasn't about what caused the explosion, and the judge made that painstakingly clear. U.S. District Judge Irene Berger also ruled that family members couldn't speak at Wednesday's sentencing for similar reasons, saying they weren't eligible for restitution and the cause of the explosion wasn't up for debate in the case.
At Upper Big Branch, four investigations found worn and broken cutting equipment created a spark that ignited accumulations of coal dust and methane gas. Broken and clogged water sprayers then allowed what should have been a minor flare-up to become an inferno.
Blankenship disputes those reports. He believes natural gas in the mine, and not methane gas and excess coal dust, was at the root of the explosion.
Blankenship rose from a meager, single-mother Appalachian household to become one of the wealthiest, most influential figures in the region and in the coal industry, and someone who gives back to the community, the judge noted Wednesday.
"Instead of being able to tout you as one of West Virginia's success stories, however, we are here as a result of your part in a dangerous conspiracy," Berger said.
During the trial, prosecutors called Blankenship a bullish micromanager who meddled in the smallest details of Upper Big Branch. They said Massey's safety programs were just a facade — never backed by more money to hire additional miners or take more time on safety tasks.
Blankenship's attorneys believe he shouldn't have gotten more than a fine and probation, and have promised to appeal. They embraced Blankenship's image as a tough boss, but countered it by saying he demanded safety and showed commitment to his community, family and employees.

More on the possibility of Judge Pryor moving to SCOTUS

The Heritage Foundation gave it short list of judges, and Judge Pryor tops the list:

In addition to an in-depth knowledge of the law and a settled judicial philosophy, a judge must have the backbone to withstand the inevitable onslaught of withering criticism from the mainstream media and the societal elites, cognoscenti, and other habitués who frequent the Georgetown and New York cocktail circuits without moderating his or her view to please them. Although he was speaking about his religious beliefs at the time, Scalia’s words could just as easily apply to conservative judges: “Have the courage to have your wisdom regarded as stupidity. … And have the courage to suffer the contempt of the sophisticated world.”
While there are a number of well-respected organizations within the conservative movement whose views should be solicited and considered, the following non-exclusive list of current judges illustrates the kind of highly qualified, principled individuals the new president should consider—after a thorough review of their backgrounds, records, legal acumen, judicial philosophies, and intestinal fortitude—for nomination to the Supreme Court.


William Pryor Jr. (Judge, 11th U.S. Circuit Court of Appeals)
The former Alabama attorney general made headlines in 2004 when President George W. Bush recess appointed him to the 11th U.S. Circuit Court of Appeals in Atlanta, where he was subsequently confirmed. While he was considered by some as controversial in 2004, during his 12 years on the bench, Pryor has established himself as a serious and thoughtful jurist, and has written on a variety of important issues. He is also a member of the U.S. Sentencing Commission.

One (not so) Shining Moment

Judge Moreno took into consideration that this defendant did a whole lot of good both before and after getting popped in this case.  From Dave Ovalle:

The judge heard a long list of bad stuff about Jorge Hernandez, the heavily tattooed, bodybuilding ex-U.S. Army soldier who ran one of the largest Molly drug rings in Miami history.
Three beautiful women, his ex-lovers facing prison time themselves, blamed Hernandez for fueling their drug addictions while convincing them to help smuggle in kilos of the synthetic drug from China. Two of them accused him of physical and psychological abuse.
One of his buddies insisted he helped Hernandez only to partake in the lifestyle of night clubs, porn stars and luxury rides.
But once he was caught, Hernandez proved to be an ace undercover operative – making drug deals that helped agents bust 13 other people. “The best I’ve seen in my experience,” federal prosecutor Marton Gyires told the judge on Monday during his sentencing.
That cooperation, combined with Hernandez’s impressive service in the military– he served in Iraq and Afghanistan as an Arabic-speaking translator – persuaded U.S. District Judge Federico Moreno to shave some time off what could have been a sentence of at least 10 years in prison. The end result: Hernandez, 37, will serve only four years.
“It wasn’t just service. It was combat duty,” Moreno said. “He should be given credit for his service to the military.”

Another defendant didn't fare as well:

Moreno also sentenced Seth Daniel Murray, 28, the son of two Miami-Dade corrections officers. Murray also wired money and picked up Molly packages, although his lawyer insisted it was only to “endear” himself to the lifestyle enjoyed by Hernandez.
“If someone says beautiful women, porn stars and ‘you can drive my Bentley,’ most people are going to say ‘yes’,” lawyer Scott Saul said.
Judge Moreno sentenced Murray to 50 months in prison, but not before noting: “The fact that he was enamored with the Hernandez lifestyle – I’m sure that love has dissipated by now.”

Read more here: http://www.miamiherald.com/news/local/crime/article69913522.html#storylink=cpy

Back to Blogging

Hey, sorry about the slow blogging last week.  I was trying a short case before Chief Judge Moore, and now I'm back.  What did I miss?

Housing Market bubble part 2, this time due to foreign investors -- via the Miami Herald:

In Miami, secretive buyers often purchase expensive homes using opaque legal entities such as offshore companies, trusts and limited liability corporations.
Offshore companies are legal as long as the companies declare their assets and pay taxes. But the secrecy that surrounds those companies makes it easy and tempting to break the law.The U.S. Treasury Department is so concerned about criminals laundering dirty money through Miami-Dade County real estate that in March it started tracking the kind of transaction most vulnerable to manipulation: shell companies buying homes for at least $1 million using cash.

Those deals are considered suspicious because a) the real buyers can hide behind shell companies and b) banks aren’t involved in cash transactions, circumventing any checks for money laundering.
Cash deals accounted for 53 percent of all Miami-Dade home sales in 2015 — double the national average — and 90 percent of new construction sales, according to the Miami Association of Realtors.
“A property owned in the name of a shell company is not transparent,” said Jennifer Shasky Calvery, director of the U.S. Financial Crimes Enforcement Network (FinCen), the Treasury agency behind the new policy. “There may be legitimate reasons to be non-transparent, but it’s also what criminals want to do.”
The temporary initiative also applies to Manhattan and expires in August. It requires that real-estate title agents identify the true, or “beneficial,” owners behind shell companies and disclose their names to the federal government. In Miami-Dade, the rules apply to homes sold for $1 million or more. In Manhattan, where real estate is more expensive and where foreign buyers also flock, the threshold is $3 million.
No other jurisdictions are being targeted.

Even a former Supreme Court Justice from Brazil is allegedly involved according to the MH:

When Brazilian news outlets found out then-Supreme Court chief justice Joaquim Barbosa had bought a Brickell condo in 2012, they asked the well-respected jurist how much he paid.
Barbosa refused to say.
The problem? In Florida, real-estate sales are public.
But not Barbosa’s.
Miami-Dade County property records seemed to suggest the 61-year-old paid a big, fat zero for his one-bedroom condo at Icon Brickell, one of the trendy neighborhood’s best-known condo towers.
Buyers are supposed to pay a documentary stamp tax when they close on a property. In Miami-Dade, the tax amounts to 60 cents for every $100 paid for the property. Sales prices aren’t listed on deeds — but they can be calculated from the tax.
The deed for Barbosa’s unit lists no tax. (Even when someone gives their property away to a family member, they pay a nominal tax.)As it turns out, Barbosa didn’t get the apartment for free. The unit’s seller sent the Miami Herald a contract showing Barbosa paid $335,000 in cash. The tax on that sale would have amounted to about $2,000.
Three real-estate attorneys consulted by the Miami Herald could see no reason why Barbosa wouldn’t be subject to the tax.
“This is a very unusual deed,” said one of the attorneys, Joe Hernandez of South Florida law firm Weiss Serota.
It’s not clear why the Florida Department of Revenue didn’t flag the nonpayment and impose a fine. A spokeswoman said the department could not comment on individual cases.
Details of Barbosa’s purchase came to light after a massive leak of documents from inside Panamanian law firm Mossack Fonseca.

Congrats to the Srebnick brothers for their SCOTUS win

The case is Luis v. United States, issued today.  Here's the intro by Justice Breyer:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property “obtained as a result of ” the crime, (2) property“traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree.

 And here's a picture of Howard arguing the case, from SCOTUSblog:

United States v. Dracula

For real, this guy's nickname is Dracula because "he sometimes dressed up as a vampire, complete with yellow contact lenses and gold-plated fangs."  You can guess how the 11th Circuit decided the case...  Here's the intro by Judge William Pryor:

This appeal and cross-appeal require us to review the convictions and sentence of Damion Baston, an international sex trafficker nicknamed “Drac” (short for Dracula) who sometimes dressed up as a vampire, complete with yellow contact lenses and gold-plated fangs. Baston forced numerous women to prostitute for him by beating them, humiliating them, and threatening to kill them, and he pimped them around the world, from Florida to Australia to the United Arab Emirates. Baston challenges the sufficiency of the evidence for one conviction, a supplemental jury instruction, and the award of restitution to his victims. Those challenges fail, but the cross-appeal by the government about a refusal to award one victim increased restitution has merit.

Get ready for traffic and t-storms...

...spring break is over.

Bummer.

Any trials starting up in Federal Court this week?

In the meantime, here you go...

The NY Times has this funny piece by Scott Shane. Maybe the other DM and I should do a post.

TAKE a glance at who wrote this article and you’ll understand the problem. Who’s who?

Two people with the same name can get mixed up — in both senses. Throw in the Internet, which can make geography irrelevant, and the possibility for confusion rivals that of a Shakespeare comedy, without the happy ending.

Just ask us.

For more than two decades, Scott Shane the business-school professor and Scott Shane the journalist have been mistaken for each other by co-authors, collection agencies, Google, a journalism school, public relations firms, an ex-congressman, a book distributor — and, yes, this newspaper. Being Internet doppelgängers has never been more than a persistent nuisance. But it reflects an era in which a person is not just flesh and blood but also an electronic composite, patched together from words, numbers and images, accessible at a click.

Dave Ovalle does this nice obit on Red from the state courthouse:

Outside Miami’s criminal courthouse, he was known to many only as “Red” the panhandler, a distinctive character woven into the colorful fabric of the justice community, as much a fixture as attorneys, hot-dog carts and TV news trucks.

On the Internet, his wild, woolly and wall-eyed mugshot made him a briefly viral meme to be mocked or, oddly enough, the face of an online ad hawking a dubious blood-pressure cure.

In real life, he was a 34-year-old named Brett Heinzinger, a man whose only luck seemed bad. He was born to heroin addicts, heard his grandfather murdered as a child, got addicted to drugs as a young man and wound up in South Florida chasing his next cocaine score and living under an overpass.

He died here, too — run down by a motorist on a dark rainy January night on Northwest 12th Avenue, under the Dolphin Expressway, next to the courthouse. The car never stopped. Next to him, Miami detectives found the foam cup he used to panhandle, seven pennies inside.

Will 4th Circuit split with 11th on cell site tracking?

The entire 4th Circuit considered whether the police need a warrant before getting your location data when your cell phone connects to cell towers.  The en banc 11th Circuit said no in US v. Davis and the Supreme Court denied cert, but the Florida Supreme Court said yes in Tracey.

The Washington Post covered the oral argument here:

Almost immediately Wednesday, questions from the bench centered on whether location information from cellphones is any different than records of banking transactions or landline phone calls.

Defense attorney Meghan S. Skelton said the government had essentially tracked the defendants’ every move, equating cellphone location data to “dragnet surveillance.” Maryland U.S. Attorney Rod J. Rosenstein countered that the information gleaned from cell towers was imprecise, unobtrusive and created by the wireless provider — not the government.

A divided three-judge panel of the court ruled in August that accessing the location information without a warrant for an “extended period” is unconstitutional because it allows law enforcement to trace a person’s daily travels and activities across public and private spaces.

Can you get a fair trial in an identity theft case if one of the jurors is paranoid and thinks you are "al Qaeda" and needs to be in the "jury protection program"?

According to the 11th Circuit, the answer is yes:

The district court did not clearly err in finding that Juror 9 could be fair and impartial. After hearing her answers to its questions, the district court “believe[d] her when she said that she would be fair.” ... Furthermore, the district court took measures to allay Juror 9’s fears by explaining that the case had nothing to do with terrorism and that her life was not in any danger. It reasonably found that this discussion “quelled” her concerns, especially because her concerns did not appear to be that serious to begin with. As soon as the district court started questioning her, Juror 9 confessed that she is “just paranoid.” 

Well, I guess if the juror was just paranoid, then we have nothing to worry about with the verdict of the "Arab, Muslim" defendant charged in a run of the mill identity theft case that had nothing to do with al Qaeda or terrorism.

Never give up!

I keep watching the last minute of this Texas A&M game.  Down double digits with under a minute to go... And they pull it off.  It's just a sick sick finish and shows: 1) anything is possible, and 2) how great March Madness is.  I love it.

It's Spring Break, so posting will be light this week.  If anything is going on, please email it to me and I will post it.  Or if you'd like to do a guest post, shoot one over!

Go Dore Go!

Dore Louis, along with his trusty trial partner Ricardo Martinez-Cid, scored a JOA yesterday before Judge Graham in a CJA "mere presence" case.  Interestingly, the judge granted the judgment of acquittal after the government closing (but before Dore closed).  Kudos to Judge Graham for continuing to call it like he sees it and not just letting cases go to the jury when they shouldn't be brought in the first place.

President Obama nominates Merrick Garland to Supreme Court

The irony is that he is more conservative than Justice Scalia on criminal justice issues.  Even the President is promoting his law and order background:

"Merrick Garland would take no chances that someone who murdered innocent Americans might go free on a technicality." —@POTUS #SCOTUSnominee

— The White House (@WhiteHouse) March 16, 2016

The Republicans would be silly to say no to him.

President Obama to announce SCOTUS pick at 11am (UPDATED)

UPDATE at 10am -- the AP is reporting that sources say it's Judge Merrick Garland.From ThinkProgress:

The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” in addition to seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand,” during the 13 years Garland had then spent on the DC Circuit.
To be clear, Garland’s record does not suggest that he would join the Court’s right flank if confirmed to the Supreme Court. He would likely vote much more often than not with the Supreme Court’s liberals, while occasionally casting a heterodox vote. Nevertheless, as Goldstein wrote in 2010 when Garland was under consideration to replace the retiring liberal Justice John Paul Stevens, “to the extent that the President’s goal is to select a nominee who will articulate a broad progressive vision for the law, Judge Garland would be a very unlikely candidate to take up that role.”

Original Post -- DC people are predicting Sri Srinivasan.  If you are looking to kill time until the announcement, you can read a summary of all of his opinions by Tom Goldstein here:

Srinivasan has few significant criminal law decisions. So far as I can determine, he has voted to overturn a criminal conviction only in a single case, in which he overwhelmingly rejected the defendants’ appeals.  United States v. McGill, 2016 U.S. App. LEXIS 3734, No. 06-3190 (D.C. Cir. 2016) (member of unanimous per curiam majority) (overwhelmingly affirming convictions and sentences in large-scale drug racketeering case, although reversing with respect to a few limited issues).  In the other cases, he affirmed.  In re Sealed Case, 809 F.3d 672 (D.C. Cir. 2016) (member of unanimous majority) (rejecting challenge to sentence of supervised release); United States v. Zagorski, 807 F.3d 291 (D.C. Cir. 2015) (member of unanimous majority) (affirming child pornography sentence); United States v. Miller, 799 F.3d 1097 (D.C. Cir. 2015) (opinion for the Court) (rejecting challenges to fraud conviction); United States v. Cano-Flores, 796 F.3d 83 (D.C. Cir. 2015) (member of unanimous majority) (rejecting challenges to drug importation conviction but remanding for reassessment of $15 billion forfeiture); United States v. Ballestas, 795 F.3d 138 (D.C. Cir. 2015) (opinion for the Court) (upholding extraterritorial application of Maritime Drug Law Enforcement Act); United States v. Munoz Miranda, 780 F.3d 1185 (D.C. Cir. 2015) (rejecting attempt to challenge guilty plea); United States v. Arrington, 763 F.3d 17 (D.C. Cir. 2014) (opinion for the Court) (rejecting attempts to reopen criminal conviction); United States v. Baxter, 761 F.3d 17 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenges to fraud conviction); United States v. Garcia, 757 F.3d 315 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenges to conviction and sentence for cocaine importation); United States v. Fahnbulleh, 752 F.3d 470 (D.C. Cir. 2014) (member of unanimous majority) (affirming fraud convictions and sentences); United States v. Solofa, 745 F.3d 1226 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenge to conviction and sentence); United States v. Taylor, 743 F.3d 876 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenge to refusal to reduce crack cocaine sentence).
Srinivasan has also rejected a variety of other claims by criminal defendants, in addition to the filing fee ruling discussed above in which the Supreme Court agreed with his reading of the statute. Asemani v. United States CIS, 797 F.3d 1069 (D.C. Cir. 2015) (opinion for the Court) (upholding denial of in forma pauperis status to prisoner under three-strikes bar); Thomas v. Holder, 750 F.3d 899 (D.C. Cir. 2014) (member of unanimous majority) (rejecting prisoner’s appeal on the merits) (concurring opinion argues that Prison Litigation Reform Act’s three-strikes provision may be unconstitutional); United States v. Dillon, 738 F.3d 284 (D.C. Cir. 2013) (member of unanimous majority) (sustaining order to medicate defendant to render him competent to stand trial).
Srinivasan’s rulings favoring criminal defendants have been largely procedural. United States v. Mathis-Gardner, 783 F.3d 1286 (D.C. Cir. 2015) (member of unanimous majority) (remanding for explanation of decision to terminate supervised release); Daniel v. Fulwood, 766 F.3d 57 (D.C. Cir. 2014) (member of unanimous majority) (reinstating ex post facto challenge to parole guidelines); Payne v. Stansberry, 760 F.3d 10 (D.C. Cir. 2014) (member of unanimous majority) (reinstating claim for denial of effective appellate counsel); In re Miller, 759 F.3d 66 (D.C. Cir. 2014) (member of unanimous court) (authorizing filing of successive challenge to criminal defendant’s sentence); United States v. Wyche, 741 F.3d 1284 (D.C. Cir. 2014) (dissenting opinion) (dissenting in relevant part from sua sponte determination that sentencing determination was harmless).
In the search-and-seizure context, Srinivasan’s most interesting case found a violation of the Fourth Amendment over a dissenting opinion. United States v. Peyton, 745 F.3d 546 (D.C. Cir. 2014) (member of two-judge majority) (holding that evidence must be suppressed because third party lacked authority to authorize search of shoe box) (dissent would find authority to consent because shoebox was in common living area). But in another case, he found no Fourth Amendment violation under existing precedent and declined to join an opinion that would have revisited that precedent. United States v. Gross, 784 F.3d 784 (D.C. Cir. 2015) (opinion for the Court) (rejecting claim that police encounter amounted to Fourth Amendment seizure) (concurring opinion argues for overturning existing precedent).

Former SDFLA U.S. Attorney says reject Trump

Bob Martinez, a well-known and well-respected lawyer in South Florida, and a longtime Republican wrote an op-ed in the Miami Herald urging voters to reject Trump:

I do not believe that any political party should stir up bigotry or racial animosity (that should not be a remarkable statement in 2016, particularly in this country, yet, sadly, it needs to be said today — in this country). As a lifelong and proud Republican, I reject in every way the appeal to sexism, racial animosity and bigotry that Trump espouses, as he plays to people’s worst and imagined fears: supporting “the total and complete shutdown of Muslims entering this country,” solely because of their religion, making vulgar, sexist remarks, mocking the disabled, calling for the mass round-up and deportation of undocumented Latinos and flirting with white supremacists, including his comment that: “I don’t know anything about David Duke” — making him either the most ignorant candidate, or just the latest political demagogue.
I refuse to engage in the folly of assuming that this is just “shtick” and that Trump will obviously govern differently, or that the weight of the office will mold him into something more high-minded. History is littered with these assumptions and rationalizations, and they only lead to moments of great regret. I don’t know the man. But, I take his words and his actions seriously. Apart from the total idiocy of his pretend policy statements, he carefully selects his words to divide the nation and provoke hatred and bigotry.
If we learned anything from Niemoeller’s journey, it is that the only way to combat bigotry, regardless to whom it is directed, is head-on and with a clarity of conviction, and even at moments — especially at moments — when there may be less confrontational routes.
If we treat hate speech and bigotry with anything less than outrage, we give it oxygen. We give it life.
I am fond of my political party, but I love this nation far more. If the Republican Party stands for nothing other than winning elections, then it will lose its legitimacy to govern and it will lose the general election. To vote for Trump is to vote for a bigot. It is no more complicated than that.

Happy PI day.

3.14




It's also March Madness.  Canes are a 3 seed in a tough bracket.

And Thursday is St. Patrick's Day.

What a busy week.

Local news -- the Broward Marshal who was involved in the drug ripoff in California got 10 years.  (via Paula McMahon).

And this guy really really had to go. (via Daily Commercial).

Judge Reggie Walton speaks to Federal Bar Association

It was an entertaining and informative talk.  His college roommate and best friend, Judge Donald Graham, introduced him.  But neither of them would give up any good college stories about the other.  Friend privilege is even more sacred than the FISA privilege...

Judge Adalberto Jordan withdraws name from SCOTUS consideration

CNN broke the story here:

Adalberto Jordan, a federal judge in Miami seen as a top contender for the Supreme Court vacancy, has withdrawn his name from contention, a lawmaker told CNN on Wednesday.

"He pulled himself out of consideration," Sen. Bill Nelson, D-Florida told CNN. Nelson said Jordan made the decision because of a "personal, family situation" involving his mother.

"I talked to him ... I think that's unfortunate because he is squeaky clean," Nelson said, citing Jordan's long judicial record and his overwhelming confirmation by the Senate in 2012.

Curt Anderson profiles Judge Jordan, SCOTUS short-listers

Here's the piece:

Adalberto Jordan, a federal appeals court judge twice confirmed by the U.S. Senate, could become the Supreme Court's first Cuban-American justice if nominated by President Barack Obama and approved once again.

Jordan, 54, is one of a number of potential nominees to replace Justice Antonin Scalia, who died last month. Obama has vowed to nominate a successor, but Senate Republicans say they will withhold approval in hopes that a new Republican president can pick the next justice.

Born in Havana shortly after the communist revolution led by Fidel Castro, Jordan emigrated to the U.S. with his family as a small boy, along with thousands of other Cuban exiles. He attended a Catholic high school in Miami and got both his bachelor's and law degrees from the University of Miami.

Jordan, who goes by "Bert," has served as a federal prosecutor, a U.S. district judge appointed by President Bill Clinton and has sat on the generally conservative 11th U.S. Circuit Court of Appeals since 2012 - the first Cuban-American to do so. He also clerked for former Supreme Court Justice Sandra Day O'Connor and was in private practice for five years.

The Senate confirmed him to the Atlanta-based appeals court by a 94-5 vote.

During his confirmation hearings, Jordan was asked by Sen. Orrin Hatch, R-Utah, about his views on the impartiality of judges and whether there was any place for personal or political viewpoints in their rulings.

"We are all human beings, of course, but I think as a judge you need to try and strive very, very hard to make sure you are deciding the case on something other than your own preferences and views, whatever those might be," Jordan replied. "So I have strived and I hope I have achieved impartiality in my years on the bench in Miami."

Federal prosecutor and defense lawyer debate meaning of "poop" emoji 💩💩💩

💩💩

I kid you not. This was the Molly retrial in front of Judge Moreno. This time, it ended in a guilty verdict.

Dave Ovalle covers it here:

Prosecutors also introduced text messages, jail phones calls from Melton and Hernandez to Pereira, who was in jail on an unrelated case. Also shown to the jury were records that the government said showed at least 12 boxes of Molly were ordered to the company, Transfreight International.

The star witness was Hernandez, 37, a heavily tattooed former U.S. Army soldier and Arabic linguist who served in Iraq and Afghanistan. In an only-in-Miami moment, both sides sparred over the meaning of the smiley-faced “poop” emoji in a text from Hernandez to Melton — with the government insisting it was sent to indicate alarm over law-enforcement scrutiny on their operation.

As Billy Corben would say: "Because Miami."

💩💩

It's Leahy's turn at SCOTUSblog

His sunshine post made me think of this song.

Supreme Court Justice Louis Brandeis, a staunch believer in open government, famously said that sunlight is the best disinfectant. Transparency enables the American people to hold their government accountable and to engage in the democratic process. Unfortunately, eleven Republican Senators are trying to deny a full and open debate on the next nominee to the Supreme Court – BEFORE that individual has even been named.

The Senate Judiciary Committee began its practice of holding public hearings on Supreme Court nominees a century ago, in 1916, and fittingly the nominee was Louis Brandeis. Since then, the Senate’s process for considering nominees to the highest court in the land has become more transparent and more accessible to the American people. In 1981, for example, Justice Sandra Day O’Connor made history in two ways – she was the first woman nominated to the Court, and her confirmation hearings were the first to be televised. Today, Americans can follow these important public confirmation proceedings through online webcasts, social media, and other platforms. These are positive steps towards opening up the highest court in the land to the Americans it affects.

Recently, Republicans on the Senate Judiciary Committee announced that they want to block this transparent process. They gathered in a closed-door, backroom meeting in the Capitol and unilaterally decided that the Senate Judiciary Committee would not consider any Supreme Court nominee this year. The meeting was closed to press, to the public, and to Democratic Senators who serve on the Judiciary Committee. In a letter to the Majority Leader after the meeting, Republican committee members justified their decision as one “born of a necessity to protect the will of the American people.” What are Republicans trying to protect Americans from? And what exactly was said during that closed-door meeting?

In my forty years in the Senate, every pending Supreme Court nominee has received a public hearing and a vote. This process has given Americans the opportunity to experience democracy in action. It is a chance to witness history in the making as Senators discuss with a Supreme Court nominee pressing issues about our democracy, our government, and crucial questions about our Constitution.

Meantime, the NY Times covers amicus briefs here:

As in all big Supreme Court cases these days, there were scores of supporting briefs filed in Wednesday’s showdown over a restrictive Texas abortion law.
From Our Advertisers

These friend-of-the-court filings — lawyers call them “amicus curiae briefs” — were diverse, but they were not random. They were the product of a coordinated campaign of judicial lobbying called “the amicus machine,” according to a new study based on interviews with more than 20 leading Supreme Court lawyers.

The teams preparing for major Supreme Court cases must now include two new members, the study said: the amicus wrangler and the amicus whisperer.

“The wrangler is gathering the troops,” said Allison Orr Larsen, a professor at William and Mary Law School and one of the study’s authors, “and the whisperer is coordinating the message.”

Finally, Joe Biden has an idea -- nominate Cruz to the Supreme Court:

Vice President Joseph R. Biden Jr. had some tongue-in-cheek advice for President Obama on Saturday about whom he should nominate to fill the Supreme Court vacancy that has preoccupied the White House and incited an election-year fight.

Choose Senator Ted Cruz, Mr. Biden joked, referring to the Republican presidential candidate from Texas, who is unpopular with his colleagues.

“Look, I told Barack if you really, really want to remake the Supreme Court, nominate Cruz,” Mr. Biden said at the annual Gridiron Dinner, according to excerpts from his prepared speech released by his office. “Before you know it, you’ll have eight vacancies.”

It was more than just a humorous dig at Mr. Cruz during the traditional Washington event, where politicians roast themselves in speeches and journalists lampoon them in musical skits. Mr. Biden’s remarks hit on the historic stakes facing the president as he ponders his choice to succeed Justice Antonin Scalia, who died last month, leaving Mr. Obama with a chance to fundamentally reshape the nation’s highest court by replacing its leading conservative.

Your Friday Afternoon Moment of Zen

A friend of the blog has sent this video for you to enjoy:

Add Robin Rosenbaum to SCOTUSblog's shortlist

Tom Goldstein puts Rosenbaum along with Jordan and Pryor (Jill), right outside of the top 5:

Three judges on the Eleventh Circuit easily could appear on this list of serious candidates from the courts of appeals, although I consider them somewhat less likely for various reasons.
Hon. Aldaberto Jordan was confirmed to the Eleventh Circuit by a vote of 94-5. He previously served as a district court judge, confirmed 93-1.
Hon. Jill Pryor was unanimously confirmed to the Eleventh Circuit.
Hon. Robin Rosenbaum was unanimously confirmed to the Eleventh Circuit, and previously served as a district judge (confirmed 92-3) and worked as a prosecutor.

Justice Kagan knows that there are two Zoolander movies!

She says so in today's dissent in Lockhart v. United States:

JUSTICE KAGAN, with whom JUSTICE BREYER joins, dissenting.

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new StarWars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.” Surely a person would have cause to protest if punished under that provision for vio­lating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase—“involved with the new Star Wars movie,” “in New York,” “relating to insider trading”—applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case. Avon-dale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2). The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list. But properly read, the modifier applies to each of the terms—just as in the examples above. That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children. And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty. I respectfully dissent.

The Empire Strikes Back... on SCOTUSblog

Senator Chuck Grassley has responded to President Obama on SCOTUSblog.  You gotta love that a law blog is hosting a debate between the President and the chair of the judiciary committee.  It's incredible when you think about it.  Well, here's the intro:

The Constitution grants the authority to nominate and approve Supreme Court Justices to coequal branches of the federal government. The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent.
However, in his post, President Obama six times states that he “appoints judges to the Supreme Court.” From that fundamental misunderstanding, he reveals that the person he will nominate, not appoint, will be someone whose decisions are not tied to the Constitution’s text.
Like most of his nominees, the President pays lip service to the notion that judges are to “interpret the law, not make the law,” but then submits that in cases where “the law is not clear” his nominee’s views “necessarily will be shaped by his or her own perspective, ethics, and judgment.” And of course, his nominee will “arriv[e] at just decisions and fair outcomes” based on the application of “life experience” to the “rapidly changing times.”
The President, candidly to his credit, has unambiguously informed the American people that his nominee will apply his or her own ethics and perspectives in deciding cases. This goes to the heart of the matter and it is a question that confronts the American people during this presidential election.

Meantime, it's NY vs. California in the Apple vs. FBI showdown.  A New York federal magistrate has correctly ruled that Apple does not need to help the government break into one of its customer's phones:

A federal magistrate judge on Monday denied the United States government’s request that Apple extract data from an iPhone in a drug case in New York, giving the company’s pro-privacy stance a boost as it battles law enforcement officials over opening up the device in other cases.

The ruling, from Judge James Orenstein in New York’s Eastern District, is the first time that the government’s legal argument for opening up devices like the iPhone has been put to the test. The denial could influence other cases where law enforcement officials are trying to compel Apple to help unlock iPhones, including the standoff between Apple and the F.B.I. over the iPhone used by one of the attackers in a mass shooting in San Bernardino, Calif., last year.

Judge Orenstein, in his 50-page ruling on Monday, took particular aim at a 1789 statute called the All Writs Act that underlies many government requests for extracting data from tech companies. The All Writs Act broadly says that courts can require actions to comply with their orders when not covered by existing law. Judge Orenstein said the government was inflating its authority by using the All Writs Act to force Apple to extract data from an iPhone seized in connection with a drug case.

The order is here. 

And if you want some local news, we have West Boca banker Richard Ohrn who is charged with faking getting lost at sea.  From the Sun-Sentinel:

Ohrn on March 31, 2015, set a rented, blood-stained fishing boat adrift in the Atlantic Ocean, used an inflatable boat to motor back to shore and then fled to Georgia in a pickup truck, according to a Palm Beach County sheriff's report.
That triggered more than two days of rescuers searching by air and sea over 3,100 square miles for someone who had actually slipped away to a rented house in Albany, Ga. — all to try to escape mounting costs from a lawsuit, according to the report.
Now Ohrn, 45, faces a felony charge of communicating false distress to the U.S. Coast Guard, according to a grand jury indictment filed Thursday.

Ohrn knowingly caused "a false distress message" that prompted the Coast Guard "to attempt to save lives and property when no help was needed," according to the indictment.
The Coast Guard last year estimated that it cost nearly $400,000 for the aircraft expenses alone in the search for Ohrn.

 Only in the Southern District of Florida!

"Can you give me an area [of law] where a misdemeanor violation suspends a constitutional right."

That was Justice Thomas' first question in over 10 years.  Apparently he asked a bunch of questions.  From the Huffington Post:

Justice Clarence Thomas, near the end of a little-noticed criminal law case involving issues of domestic abuse and the potential loss of gun rights, asked his first question from the Supreme Court bench in 10 years.
"Can you give me an area [of law] where a misdemeanor violation suspends a constitutional right," Thomas asked of the federal government's lawyer, who was arguing that a federal ban on gun ownership for certain persons who are convicted of domestic violence offenses at the state level should apply if the offense was committed "recklessly."
Ilana Eisenstein, the assistant solicitor general arguing the case, had asked if anyone had more questions for her. That's when Thomas, in his booming baritone, spoke up, asking a lengthy string of questions about an issue so far unexplored in the hearing.
He wanted to know "how long" the suspension of Second Amendment rights was for persons prohibited under federal law to possess firearms, and he pressed Eisenstein to name any other legal analog where the federal government could permanently curtail constitutional rights following a conviction for an unrelated offense.
"Let's say that a publisher is reckless about the use of children ... in indecent displays," he said, and wondered if the government then could suspend that publisher's right of free press permanently.

"Senator Rubio is reviewing it and deciding how to proceed."

That was Marco Rubio’s spokesman Alex Burgos about the nomination of Mary Barzee Flores to the federal bench.  But his statement makes no sense since Rubio supported the nomination in the first place.  Presidential politics stink.

The Miami herald covers it here:

It's no wonder U.S. Sen. Marco Rubio recommended seasoned Miami lawyer Mary Barzee Flores to fill an opening on the busy federal judiciary in South Florida more than a year ago.
She worked her way through the University of Miami and its law school, spent more than two decades as an assistant federal public defender and state circuit court judge, then joined a top commercial law firm before applying for a coveted federal judgeship.
“What a spectacular judge,” said Miami lawyer Edward Blumberg, a former president of the Florida Bar Association, recalling his experience trying a complex medical malpractice case in front of her. “She's one of the best judges I've seen statewide.”
Rubio thought so, too. But since Barzee Flores' nomination by President Barack Obama a year ago, the Miami Republican now running for his party's presidential nomination has held up her confirmation by not allowing the Senate Judiciary Committee to move forward with it.
Rubio, who had recommended Barzee Flores along with his Florida colleague, U.S. Sen. Bill Nelson, has not submitted a so-called blue slip that would set the wheels in motion for her confirmation — a decision seemingly in lockstep with the GOP-led Senate’s strategy to “slow-walk” the Democratic president’s judicial nominees since early last year. Only 16 federal district and appellate judges have been confirmed since last year by the Senate, including four nominated after Barzee Flores. The president nominated her on Feb. 26, 2015, and Nelson, a Democrat, returned his blue slip for her confirmation immediately.
Rubio's critics, including some in the Republican Party, say his dilatory strategy is indefensible because, in Barzee Flores, the senator is blocking an ideal candidate for a federal judgeship that has been vacant for almost two years. Indeed, the position has been deemed by the court as a “judicial emergency,” leaving other federal judges with heavier caseloads in South Florida.
“I've been honestly shocked by his lack of responsibility as a U.S. senator,” said Miami lawyer Tom Spencer, a Republican who supported Rubio against Democratic challenger Charlie Crist for the Senate in 2010, but backed former Florida Gov. Jeb Bush during this presidential primary season. “She's an excellent judge. There is absolutely no reason for him not to move forward with her confirmation. It's an absolute outrage and slap in the face of the people of Florida.”

Read more here: http://www.miamiherald.com/news/politics-government/article63008137.html#storylink=cpy

Trial happenings

Most of the white collar bar was watching the criminal trial involving the BP oil spill case in New Orleans.  Yesterday the jury found the engineer that the government was trying to hold responsible not guilty in less than two hours.  From the AP:

A former BP rig engineer was found not guilty Thursday (Feb. 25) on a charge of negligence that contributed to the 2010 Gulf of Mexico oil spill.
Robert Kaluza was a rig supervisor aboard the Deepwater Horizon offshore rig when it exploded, killing 11 workers and resulting in millions of gallons of oil spewing into the Gulf and fouling wetlands and beaches.
Kaluza was charged with a single count of violating the federal Clean Water Act. Jurors got the case Thursday afternoon and reached a verdict after less than two hours of deliberation.
Prosecutors told jurors Kaluza and a former co-defendant, Donald Vidrine, botched a crucial pressure test indicating oil and gas could be flowing from deep beneath the sea floor into BP's Macondo well, which was thought to be securely plugged with cement and mud.
"All of the red flags in front of him should have told him that it was a bad test," Assistant U.S. Attorney Gary Winters told jurors after showing them projected images of smoke billowing from the flaming, crippled rig, followed by pictures of oil-coated coastal land.
Defense attorney Shaun Clarke cast Kaluza as a scapegoat. He said federal prosecutors failed to make their case.
Clarke said Vidrine, who has pleaded guilty in the case, was the rig leader who declared the test a success — after Kaluza's watch aboard the rig had ended.
"The Macondo well was under control during every single second of his watch," Clarke said.
Clarke also said other rig workers with 97 years of combined experience in drilling agreed with Vidrine. Clarke disputed Winters' statement that the test was a simple one, saying there were no government standards for the test the prosecution is citing.
"There is no dispute that others were negligent," prosecutor Jennifer Saulino argued later. But Kaluza shared in the negligence that caused the disaster and he should be held criminally accountable for the pollution, she said, as a video of oil flooding from the sea floor flashed on a screen behind her.
Another defense lawyer, David Gerger, argued that failure of multiple, redundant safety systems and equipment caused the explosion, not the interpretation of a test. He pointed to rig crew members failing to notice a "kick" or influx of oil and gas into the rig hours ahead of the spill, a captain's failure to timely operate an emergency system that would have disconnected the well from the rig ahead of the explosion and the failure of a crucial device known as a "blowout preventer" that had not been property certified.

Some of you may remember the prosecutor from the big ATC case here before Judge Seitz.  The defense team involved some of the best lawyers I know -- David Gerger, Robert Hirschhorn, and Jennifer Johnston* to name a few.  Before the trial, the lawyers--with some great lawyering in court and in negotiations with prosecutors--were able to convince DOJ to drop the more serious charges:

Although Kaluza could have faced a year of prison on the pollution charge, he once faced more serious charges. He and Vidrine had been indicted on federal manslaughter and "seaman's manslaughter" charges — 22 counts apiece — stemming from the 11 deaths on the rig. But the seaman's manslaughter counts were thrown out by the courts and government prosecutors late last year backed away from the remaining manslaughter counts.
Prosecutors have recommended no prison time and 10 months of probation for Vidrine. He is set for sentencing in April.

He testified for the prosecution early in the trial, telling jurors that Kaluza never gave him information that prosecutors say was critical. The information dealt with a test meant to show whether two cement plugs, other structures and drilling mud below the ocean floor could stand up to the pressure of oil and gas farther down.

Congrats to the defense team.  What a win.

*Full disclosure -- Johnston used to work with my firm.

President Obama, Guest Blogger on SCOTUSblog

Wow, this is so cool. Check out the guest post by President Obama, titled "A Responsibility I Take Seriously":

The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead.

It’s also one of the most important decisions that a President will make. Rulings handed down by the Supreme Court directly affect our economy, our security, our rights, and our daily lives.

Needless to say, this isn’t something I take lightly. It’s a decision to which I devote considerable time, deep reflection, careful deliberation, and serious consultation with legal experts, members of both political parties, and people across the political spectrum. And with thanks to SCOTUSblog for allowing me to guest post today, I thought I’d share some spoiler-free insights into what I think about before appointing the person who will be our next Supreme Court Justice.