Judge Federico Moreno named to Executive Committee

What a big (and well-deserved) honor.  Chief Justice John Roberts has formed the executive committee of the Judicial Conference to include:

Judge Paul J. Barbadoro, Chair   District of New Hampshire

Judge Robert James Conrad	Western District of North Carolina
Chief Judge Merrick B. Garland	DC Circuit
Federico A. Moreno	Southern District of Florida
Chief Judge William Jay Riley	Eighth Circuit
Chief Judge Sidney R. Thomas	Ninth Circuit
Martha Vazquez	District of New Mexico
James C. Duff	AO Director

Thin.

That was Judge Rosenbaum in this concurrence yesterday.  Here's the whole intro:

Johnny Marshall has already spent seventeen years in jail for a $261 robbery that he very well may not have committed. And after our decision today, he may spend the rest of his life there. But Marshall’s attorney almost certainly could have prevented Marshall’s conviction, had he done what any other competent attorney would have on this record: pursued a motion to suppress the illegally obtained sole eye-witness’s identification of Marshall, an identification that the same witness’s earlier description of Marshall squarely contradicted.
I write separately because I believe that Marshall was denied effective assistance of counsel, in violation of the Sixth Amendment. Nevertheless, despite the weak evidence underlying Marshall’s conviction and the substantial error his trial counsel made, I agree with the Majority’s ultimate conclusion that 28 U.S.C. § 2254 offers Marshall no relief. Whether because of § 2254’s strict statutory exhaustion requirements or its highly deferential standard of review of state-court decisions, we have no choice but to deny Marshall’s claim. At this point, any potential relief Marshall might obtain must come from the state, such as an act of clemency by the state’s executive branch.
I.
Thin. That’s a generous way to describe the evidence against Marshall. The only evidence tying Marshall to the robbery consists of Geraldine Jenkins’s identification of him. But Jenkins—the Pizza Hut employee who was present during the robbery—identified Marshall within about an hour of providing a description of the robber that bore about as much resemblance to Marshall’s actual appearance as broccoli does to carrots. Both are in the same general category—men and vegetables, respectively—but that’s where the similarities end.

"You haven't litigated much against the State of Florida then."

 That was Judge William Pryor this morning in the argument regarding kosher meals in the prison system.  A tipster told me the exchange went something like this:

Pryor: [to lawyer arguing for the prisoners]  You should quit while you are ahead [and sit down with 5 minutes left during your argument].

Lawyer: I've never been in this position before.

Pryor:  You haven't litigated much against the State of Florida then.

OUCH!  Maybe that will change now that Florida has a new SG.

B-Girls convictions reversed with citations to the Bible, Vulcans and Pappy's Bourbon

Wow, big opinion today by the 11th Circuit, reversing the B-girls convictions.  The blog covered (and frequently criticized) the prosecution and lengthy trial, which involved bar girls getting guys drunk and running up tabs at bars. Welcome to Miami!

The 11th Circuit held that the court should have instructed the jury as follows: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay.

The panel was Ed Carnes, Martin and visiting district judge Amul Thapar (EDKY).

The appellate defense team included Howard Srebnick, Richard Klugh, Marcia Silvers, and John Bergendahl.

The opinion, written by Judge Thapar, is awesome and includes all sorts of fun references (to the Bible, Star Trek, Whiskey, Holmes and more).  Here's the intro:

The wire-fraud statute, 18 U.S.C. § 1343 does not enact as federal law the Ninth Commandment given to Moses on Sinai.* For § 1343 forbids only schemes to defraud, not schemes to do other wicked things, e.g., schemes to lie, trick, or otherwise deceive. The difference, of course, is that deceiving does not always involve harming another person; defrauding does. That a defendant merely “induce[d] [the victim] to enter into [a] transaction” that he otherwise would have avoided is therefore “insufficient” to show wire fraud. See United States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987).
Here, the defendants feared that the jury might convict them of wire fraud based on “fraudulent inducements” alone. Hence they asked the district court to give the jurors the following instruction: that they must acquit if they found that the defendants had tricked the victims into entering a transaction but nevertheless gave the victims exactly what they asked for and charged them exactly what they agreed to pay. The district court refused to give that instruction, and the jury ultimately convicted the defendants of wire fraud and other crimes, most of which were predicated on the wire-fraud convictions. The question presented in this appeal is whether the district court abused its discretion when it refused to give the requested instruction.

*See Exodus 20:16 (“Thou shalt not bear false witness against thy neighbor.”) (KJV).

Some other good stuff:

• The question before us, however, is not whether the proposed instruction was “logically entailed” by the given instruction, but whether it was “substantially covered”; and those are meaningfully different concepts. After all, the average juror is not Mr. Spock. If he were, then a trial-court judge’s job would be much easier. He could instruct the jury in broad strokes—instructing only as to the bare elements of the crime, perhaps—and be confident that the jury would deduce all of the finer-grained implications that must logically follow. As it stands, however, the vast majority of American juries are composed exclusively of humans. And humans, unlike Vulcans, sometimes need a bit more guidance as to exactly what the court’s instructions logically entail.
• Now imagine another, more common scenario: a young woman asks a rich businessman to buy her a drink at Bob’s Bar. The businessman buys the drink, and afterwards the young woman decides to leave. Did the man get what he bargained for? Yes. He received his drink, and he had the opportunity to buy a young woman a drink. Does it change things if the woman is Bob’s sister and he paid her to recruit customers? No; regardless of Bob’s relationship with the woman, the businessman got exactly what he bargained for. If, on the other hand, Bob promised to pour the man a glass of Pappy Van Winkle** but gave him a slug of Old Crow*** instead, well, that would be fraud. Why? Because the misrepresentation goes to the value of the bargain.  
  
  ** “Pappy’s,” as it is often called, is a particularly rare bourbon varietal: nearly impossible to find, and nearly impossible to afford when one finds it.
  
  ***Although Old Crow has a venerable pedigree—reportedly the go-to drink of Mark Twain, Ulysses S. Grant, Hunter Thompson, and Henry Clay—it is not Kentucky’s most-expensive liquor. Its “deluxe” version, “Old Crow Reserve,” retails for approximately $15 per bottle.
  
  Thus, a “scheme to defraud,” as that phrase is used in the wire-fraud statute, refers only to those schemes in which a defendant lies about the nature of the bargain itself. That lie can take two primary forms: the defendant might lie about the price (e.g., if he promises that a good costs $10 when it in fact costs $20) or he might lie about the characteristics of the good (e.g., if he promises that a gemstone is a diamond when it is in fact a cubic zirconium). In each case, the defendant has lied about the nature of the bargain and thus in both cases the defendant has committed wire fraud. But if a defendant lies about something else—e.g., if he says that he is the long-lost cousin of a prospective buyer—then he has not lied about the nature of the bargain, has not “schemed to defraud,” and cannot be convicted of wire fraud on the basis of that lie alone.
• Similarly, in Hill, the court instructed the jury that the defendant was guilty of credit-application fraud only if he made false statements to the bank knowingly and willfully. The defendant asked the court to instruct the jury that he was not guilty if he believed the statements were true. United States v. Hill, 643 F.3d 807, 852–54 (11th Cir. 2011). Thus, to get from the given instruction to the requested one, the jury needed to infer only one thing: that a person cannot lie “knowingly and willfully” if he speaks what is in his view the truth. That inference, too, hardly requires Holmesian feats of deduction.****
****Sherlock or Oliver Wendell: either Holmes will do here.

This is just some of the really fun stuff in the opinion.  Check it out.

“Now it’s time for us to move to New Zealand.”

That was Justice Ginsburg in an interview with the NYT saying what would happen if Trump won:

Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.

These days, she is making no secret of what she thinks of a certain presidential candidate.

“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.

“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

Last week, I posted about the 3-judge concurrence in the 11th Circuit.  Professor Bascuas has criticized the practice in the comments:

By definition, there is no such thing as a majority, much less a unanimous, concurrence. That essay is either the rationale for the holding or obiter dicta. Since we can assume that these judges know what a "concurrence" is, the question is, why deliberately mislabel this writing in a way guaranteed to draw maximal attention to it? The sub-text may be an awakening to the fact that the court has fetishized the superfluous and redundantly named "prior precedent" rule to the point where the first opinion on an issue is treated as legislation rather than as a precedent. The reach of a precedent in a common-law system is limited by the case's facts and the judges' analysis, subject to revision under different facts or a more complete analysis. Given that, what need is there for a "rule"? If the first panel is convincing, its opinion controls. Why should an unconvincing opinion control? The first-panel-makes-law rule is harmful to litigants. It encourages judges to overreach the facts and the law so as to "bind" the whole court (the way Matchett did). In that way, later litigants are "bound" by the first brief on an issue, even if it was not very well researched or presented. Hopefully, this writing is a sign that this insidious and unnecessary rule's days are numbered.