Author of Nunes memo has ties to SDFLA

The author of the Nunes memo, Kash Patel, has ties to SDFLA.  He was an assistant state public defender in Miami.  Then, an assistant federal defender.  Then he moved to Washington, DC to become a DOJ terrorism prosecutor. 

The attacks on the FBI, though, don't seem to be getting a lot of traction from the memo.  This seems like a much stronger issue for those who would attack the FBI.  From the NY Times:

For more than a year, an F.B.I. inquiry into allegations that Lawrence G. Nassar, a respected sports doctor, had molested three elite teenage gymnasts followed a plodding pace as it moved back and forth among agents in three cities. The accumulating information included instructional videos of the doctor’s unusual treatment methods, showing his ungloved hands working about the private areas of girls lying facedown on tables.

But as the inquiry moved with little evident urgency, a cost was being paid. The New York Times has identified at least 40 girls and women who say that Dr. Nassar molested them between July 2015, when he first fell under F.B.I. scrutiny, and September 2016, when he was exposed by an Indianapolis Star investigation. Some are among the youngest of the now-convicted predator’s many accusers — 265, and counting.

The three alleged victims then at the center of the F.B.I.’s inquiry were world-class athletes; two were Olympic gold medalists. Nearly a year passed before agents interviewed two of the young women.

Reality Winner's detention upheld

Reality Winner's detention upheld by the 11th Circuit.  From the Washington Times:

The 11th Circuit Court of Appeals affirmed Wednesday a district court’s order keeping accused National Security Agency leaker Reality Winner behind bars pending trial.
A federal appellate panel ruled 3-0 to uphold a lower court’s ruling detaining Ms. Winner, 26, effectively seeing she remains jailed until her leak case is heard likely later this year.
Ms. Winner was arrested in June 2017 in Augusta, Georgia, and subsequently charged in connection with sharing classified material obtained while employed at Pluribus, an Atlanta-based contracting firm, and ordered held until trial.
Defense attorneys had sought to secure Ms. Winner’s release from jail prior to court proceedings starting, but the 11th Circuit quashed that bid by upholding a lower court’s pretrial detention order, citing the likelihood of the accused fleeing the country.
“[T]he district court did not err in finding by a preponderance that Ms. Winner is a flight risk and that no condition or combination of conditions will reasonably assure her appearance,” the appellate panel wrote in the 5-page ruling affirming the detention order.

Here's the opinion.

Falcon pleads

Gustavo Falcon, on the run for 26 years, pleaded guilty today before Judge Moreno.  He's looking at 11-13 years under his plea agreement and prosecutors won’t charge him (for being a fugitive) or his wife and their two grown children (for hiding him).

Meantime, a naked bank robber was found not guilty yesterday in a bench trial before Chief Judge Michael Moore.  You are probably reading that last sentence a few times... okay, okay -- it wasn't a straight not guilty.  It was a not guilty by reason of insanity.  And the parties agreed.  Here's the Sun-Sentinel coverage by Paula McMahon. I've never seen that before in this District.  Anyone else?

Read more here: http://www.miamiherald.com/news/local/article197809819.html#storylink=cpy

Yikes

From the yikes department, here's the introductory paragraph from Chief Judge Carnes in Winn-Dixie v. Dolgencorp:

After we have remanded a case with specific instructions, attorneys rarely attempt to have the district court defy our mandate. And even if they try it, a district court is seldom misled into that kind of error by them. This is one of those rare cases where the attorneys representing one side successfully urged the district court to act contrary to our mandate. Of course, we reverse that part of its judgment.

More:

Needless to say (or maybe not), a district court cannot amend, alter, or refuse to apply an appellate court’s mandate simply because an attorney persuades the court that the decision giving rise to the mandate is wrong, misguided, or unjust. A district court can, of course, wax eloquent about how wrong the appellate court is, but after the waxing wanes the mandate must be followed.

***

There is no imprecision in those instructions, no room for evasive interpretation, in short, there is no legitimate basis for applying what we said only to a subset of the 41 Florida stores. We don’t know what else we could have said other than, perhaps, “and we really mean it.” Well, we really did mean it. And we still do.

The district court did not do what we instructed it to do because it was led astray by the defendants’ attorneys.

Rant: Bond pending appeal

Rant: Bond pending appeal

Everyone knows the dirty little secret in federal criminal cases -- everything is stacked against the criminal defendant.  That's why so many defendants plead.  Even innocent defendants.  It takes a ton of courage to fight the government because the stakes are impossibly high.

One tactic the government uses against criminal defendants is opposing reasonable bail.  In many cases, the government tries to keep defendants behind bars during pretrial litigation.  But lately, judges have been much better about releasing white collar defendants on bond during pretrial litigation.  This trend has not reached appellate bonds though.

If a defendant is convicted at trial, it is nearly impossible to get an appellate bond -- even for white collar defendants who are not a risk of flight or danger to the community.  This is maddening because defendants who end up prevailing in the court of appeals end up serving time unnecessarily.  And it's not because the law is bad... it's just because there is a culture of denying such motions. 

Yesterday, our firm had a sweet appellate win in the 5th Circuit (we were not the trial lawyers) for a 68-year old doctor who was improperly and unjustly convicted of medicare fraud (here's the opinion).  The conservative court of appeals found that the evidence against her was insufficient.  But her motion for bond pending appeal was denied, so the doctor sat in prison for almost 10 months waiting for the appeal to be decided.  Even though that is relatively quick, she will never get those 10 months back.  In a recent 11th Circuit case, the poor client had to spend 3 years in prison before being vindicated in a published order saying that she was actually innocent. Now, that woman is seeking to be compensated for her time in prison.

There is nothing more sacred than our liberty.  If a person has the courage to stand up to the government and fight the charges, and if they are not a danger to the community or a risk of flight, then courts should be willing to say that they have "close" issues on appeal (which is a pretty low standard) and grant them bond pending appeal.  I'm sure that there are a handful of cases over time where someone has fled on an appellate bond, but I have never seen such a case. The harm in denying such a bond is irreversible if the defendant wins on appeal.  If she loses, then the government has lost nothing.

I'm happy to debate any prosecutor or judge on this issue.  Let me know and we will set up a back and forth on the blog.