News & Notes

1. Go Heat!

2. Dave Ovalle used an emoji in the lede to this article about the Instagram trial before Judge Seitz, which resulted in a guilty verdict: "Jurors did not ♥ Cuban Harry’s Instagram defense." You'll only see it in the online version as the paper can't print it. Hilarious.

3. “Tom Davis is morally corrupt. He’s a womanizer, a bad husband, and he stole money from a charity he ran.” That was prosecutor Dan Goldman in his closing argument about his star witness, who testified against William Walters in this fascinating insider trading case. From the NYT:

In the end, though, it was the power of the insider trading narrative, which is so appealing to jurors, that helped convict Mr. Walters, known as Billy, on multiple counts of securities and wire fraud. His trades resulted in gains and losses avoided of about $43 million, making it one of the largest prosecutions ever.

Among those whose names came up at trial was Phil Mickelson, a World Golf Hall of Fame member who repaid a little over $1 million to the Securities and Exchange Commission for trading on information he received from Mr. Walters about Dean Foods. Mr. Mickelson was not charged with any wrongdoing, although it came out during trial that he would avoid testifying by asserting his Fifth Amendment privilege against self-incrimination.

Another name that surfaced briefly was Carl C. Icahn, the activist investor who is an unpaid adviser to President Trump. Prosecutors sought permission during the trial to introduce evidence that Mr. Walters traded on information he received about Mr. Icahn’s investments to show a general proclivity to use confidential information, but that never came to pass.

The key witness in the case was Thomas C. Davis, a former chairman of the board of Dean Foods who also worked as a consultant in an activist campaign involving Darden Restaurants. He admitted giving inside information about both companies to Mr. Walters, but this was far from a simple case of an insider making a mistake by tipping a friend.

Mr. Walters helped arrange loans of nearly $1 million to Mr. Davis, who had financial problems and never repaid the full amount he owed. Mr. Davis said that he innocently gave Mr. Walters information at first, but over time became a “virtual conduit” about corporate developments.

Their relationship developed to the point, Mr. Davis testified, that Mr. Walters gave him a prepaid cellphone that was nicknamed the “Bat Phone” over which they communicated in code about companies, such as referring to Dean Foods as the Dallas Cowboys.

4. How Appealing has now been around for 15 years. It was the legal blog that really started it all. Howard Bashman reflects on it here:

Let me begin with the favorable ­developments that I have observed over the past 15 years in the ability to access and cover appellate court rulings and developments. Today it is very easy to visit the websites of each of the U.S. courts of appeals and access freely and in a timely manner the published and unpublished decisions that those courts have issued. Ten of those 12 federal appellate courts provide free access online to oral ­argument ­recordings, and soon that number will increase to 11, with the U.S. Court of Appeals for the Tenth Circuit remaining as the lone holdout. The Ninth Circuit live streams video of its oral arguments on YouTube, and our local federal appellate court, the Third Circuit, has recently begun posting the video of certain oral arguments online.
Fifteen years ago, none of the federal appellate courts was providing oral argument audio or video online. Advances in technology, including improvement in the speed with which one can access large files over the internet and a vast decrease in the cost of electronic storage capacity, have made it feasible to allow for the widespread availability of oral argument audio online. In fact, earlier this year, many thousands listened live online, over the radio, and via cable news channels to the Ninth Circuit's oral argument of Washington state's ­challenge to President Donald Trump's first executive order imposing travel restrictions on those seeking to enter the United States from various countries.
Similarly, now in 2017 we can access online from the U.S. Supreme Court's own website that court's opinions and orders only moments after they are released to the news media physically present at the court's building in Washington, D.C. Transcripts of U.S. Supreme Court oral arguments are available free of charge from that court's website the same day that the arguments occurred. And on Friday afternoons of oral argument weeks, the U.S. Supreme Court posts online the audio files of the cases orally argued that week.

Judges unite!

It's time for the judiciary to stand up because it looks like the executive branch is getting ready to unleash the War on Drugs, Part II.  From the Washington Post:

Sessions has yet to announce specific policy changes, but Cook’s new perch speaks volumes about where the Justice Department is headed.

Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.

Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.

“Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”

Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.

“They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

When the War on Drugs started in the 80s, appellate judges mostly rubber-stamped sentences and convictions, and district courts gave prosecutors free reign. We've seen the opposite trend recently, with judges more likely to go below the guidelines and courts of appeals more likely (slightly) to wade into criminal issues. Some of this, of course, has to do with the changes in the law and the changes in administration. But it's in times like these where the judiciary is sorely needed to fulfill its role as a check on the executive. Let's see what happens.

Meantime, in our District, one fellow asked for the max sentence so he could get medical care in prison. This put Judge Cohn in a tricky situation. From Paula McMahon:

Though the judge and Brown said they did not want to reward Peak by giving him what he wanted, Brown said they were in a bind:

“For him to not get what he wants means he’d get less time in prison and that doesn’t seem right either.”

Judge Cohn said he believed Peak had other options, including Medicaid.

Brown said that would have “required a lot more effort than Mr. Peak is willing to put in.”

The judge made it very clear that he took a dim view of the whole escapade. He paused for several minutes before announcing his compromise decision.

Based on Peak’s long criminal history and his most recent offense, Cohn said he had decided to impose the maximum punishment recommended by sentencing guidelines: Five years and three months in federal prison.

But Peak wasn’t getting everything his way.

Judge Cohn routinely approves requests by prisoners that he recommend a specific prison. But he rejected Peak’s request that he recommend sending him back to the prison medical center in Missouri. The judge said it was up to the Bureau of Prisons to pick an appropriate placement — not Peak.

News & Notes

1.  Akerman lawyer and Mignonette owner Ryan Roman (along with good guy Danny Serfer) had a lot of fun with Munch Madness, making it to the Finals against Flanigans. Here's the Herald piece:

Co-owners Ryan Roman and chef Danny Serfer decided to visit every Flanigan’s, from Kendall to Stuart, all in one day — a 13 1/2 hour road trip on April 1, and no, it wasn’t an April Fool’s joke. They posted a picture on Instagram and Twitter from each location, eating their way down the east coast of Florida. They chronicled their trip with the hash tags #YourBiggestFlans and #FlanClub.

2.  Here's a nice piece about Bankruptcy Judge Jay Cristol:

The life and career of A. Jay Cristol has been full of ups and downs, but that’s not surprising for a pilot with seven decades of flying experience.
In fact, to speak with Judge Cristol of the U.S. Bankruptcy Court for the Southern District of Florida, it’s clear there were a lot more ups than downs.
He’s not only been a Navy aviator and a jurist, but he’s also a scholar, teacher and philanthropist.

3.  Many of you sent me this piece by Judge Kopf about his observations about criminal defense lawyers (thanks for sending it!).  It's a fun read.  Many Miami CDLs won't like this one:

 If you became a criminal defense lawyer because you like Rolex watches, then you are an asshole.

RIP James C. Hill

Eleventh Circuit Judge James Hill passed away last Friday at 93.  Here's the 11th Circuit's memoriam page:

James Clinkscales Hill, a senior judge on the 11th Circuit Court of Appeals, died on March 31, 2017 in Stuart, FL. He was 93. Born in Darlington, SC on Jan. 8, 1924, Hill attended the University of South

Caro lina for three years before joining the Eighth Air Force in England during World War II, serving in the 390th Bomb Group as a cryptographer. After the war, he entered Emory University Law School,

graduating in 1948 and joining the Atlanta firm of Smythe Gambrell. He founded Hurt, Hill andRichardson in 1963 and worked primarily as a defense trial lawyer until he was appointed a federaldistrict judge in 1974 by President Richard Nixon. President Gerald Ford elevated Hill to what was then the Fifth Circuit in 1976. In 1946, he  married Mary Black of Simpsonville, SC, then a chemist with the Food and Drug Administration who went on to a career dancing and teaching ballet in Atlanta. Mary and Jim were active in Atlanta's cultural, legal, political and social scene for the next 45 years. Many weekends were spent in their houseboat on Lake Lanier. Every April meant a trip to the Masters. World travelers, they went far beyond the usual tourist destinations -

climbing up Kilimanjaro, rafting down the Grand Canyon, trekking in the Himalayas, cruising on the Yangtze, sailing along the Nile --visiting everycontinent but Antarctica. For some years, Jim flew his own Beechcraft Bonanza and then learned to scuba dive. A dedicated golfer who played Augusta National and St. Andrews, he recorded three holes

in-one. Two of those came at the Golf Club of Amelia Island, FL where Jim and Mary moved in 1991 after he took senior status on the court, maintaining chambers in Jacksonville and living on the ocean. Jim,

who celebrated his 80th birthday with a parachute jump, heard cases until after his 90th. Among his many honors was membership in the American College of Trial Lawyers. In Atlanta, Jim and Mary were

members of Wieuca Road and Northside Drive Baptist Churches, joining the Amelia Plantation Chapelwhen they moved there. Services will be held there on Saturday, April 8 at 11 a.m. Jim's ashes will be

placed in the Chapel's columbarium next to those of Mary who died in 2010. He is survived by his sister Jean Ballentine of Mt. Pleasant, SC; his sons, James C. Hill, Jr. (Dorothy) of Stuart, FL, and A. Michael Hill

(Patty Dann) of Baltimore, MD; seven grandchildren and six great -grandchildren. Memorial contributions may be made to the Judge James C. Hill scholarship at Emory University Law School.

Instagram trial

Oh, this is too fun. David Ovalle covers the Judge Seitz trial with lots of funny Instagram pictures and arguments:

"The heater would be a reference to the AK47 on the seat there,” U.S. Homeland Security Agent Kevin Selent testified.

Garcia’s trial began Tuesday with digital era evidence: prosecutors pored over his Instagram account, which they argue confirms he was a big-time doper, selling weed, Xanax and the potent cough syrup drink known as “lean,” “sizzurp” or “drank.”

Jurors will have to decide whether Garcia was doing real business or just image-building on social media – his lawyers insist the 26-year-old supposed music producer was more addict than kingpin, a wannabe hanging with celebrities.

“On Instagram, Harrison was a baller, if you will, taking photos with Chris Brown and Lil’ Wayne,” lawyer Percy Martinez told jurors in opening statements. “In real life, he was a big kid with kids of his own.”