Former federal prosecutors from Miami upset about Trump commutations in white collar cases...

 ...but the truth is that there should have been so many more.  The sentences for first time, non-violent offenders are out of control.  Yet, these former Miami prosecutors (Pelletier, Ferrer, and Stefan were all mentioned in this N.Y. Times article) seem to be upset about any commutation, even for Judith Negron who was sentenced to 35 years. 35 years! An absurd and insane sentence.

Not far away, in Hialeah, Fla., Judith Negron, 49, who had been convicted in a separate scheme to siphon off hundreds of millions of dollars in fraudulent Medicare payments, was also at home for the holidays instead of in federal prison. Thanks to a commutation by Mr. Trump, she had been released after serving eight years of a 35-year sentence and was relieved of any remaining obligation to pay her share of $87 million in court-ordered restitution.

This was hardly the outcome that Paul E. Pelletier expected when he and a team of other top Justice Department prosecutors and federal investigators set out to expose what Mr. Esformes and Ms. Negron had done.

***

In explaining his decisions, Mr. Trump said that Ms. Negron was a “wife and mother” and had dedicated her time in prison to “improving her life and the lives of her fellow inmates.” Mr. Esformes, he said, spent his time in prison “devoted to prayer and repentance and is in declining health,” and others had raised claims of misconduct by prosecutors in his case.

The presidential rationales did not hold much weight with those who had sought to hold Mr. Esformes and Ms. Negron accountable.

“It is an incredible kick in the teeth to the agents and prosecutors who toil away every day under very difficult circumstances to achieve justice and some restitution to the taxpayers from the billions of dollars that has literally been stolen from them,” Mr. Pelletier said.

We need criminal justice reform so that these abusive sentences and abusive practices don't need to get to the point of requiring Presidential action.  

Ms. Negron, and lawyers for Dr. Melgen and Mr. Esformes, 52, argue that the commutations were justified. They said the Justice Department was overzealous in its prosecutions, either by using unethical practices during the investigation or by pushing for excessively long prison sentences and unrealistic restitution orders.

“I was sentenced based on numbers that were not relevant to me,” Ms. Negron said this month in an interview, referring to her 35-year sentence and multimillion-dollar restitution requirement. She argued that her earnings from the scheme were not more than her salary of about $250,000 a year. Prosecutors said during the trial that much of the stolen money was still missing.

The truth is that there should have been 10x the amount of commutations/pardons.   Anyone with the temerity to insist on his Sixth Amendment right to trial is made an example of by the system.

Instead of being upset with the few that were granted, we should all be pushing for more under a Biden presidency.

Significant pardons/commutations in SDFLA include Melgan and Lil Wayne

 Here's the link to the full list:

Salomon Melgen – President Trump commuted the sentence of Salomon Melgen. This commutation is supported by Senator Bob Menendez, Representative Mario Diaz-Balart, numerous members of Brigade 2506, Col. Mark D. Holten, as well as his friends, family, and former employees. Dr. Melgen was convicted of healthcare fraud and false statements. Numerous patients and friends testify to his generosity in treating all patients, especially those unable to pay or unable to afford healthcare insurance.

 

Dwayne Michael Carter Jr. – President Trump granted a full pardon to Dwayne Michael Carter Jr., also known as “Lil Wayne.” Mr. Carter pled guilty to possession of a firearm and ammunition by a convicted felon, owing to a conviction over 10 years ago. Brett Berish of Sovereign Brands, who supports a pardon for Mr. Carter, describes him as “trustworthy, kind-hearted and generous.” Mr. Carter has exhibited this generosity through commitment to a variety of charities, including donations to research hospitals and a host of foodbanks. Deion Sanders, who also wrote in support of this pardon, calls Mr. Wayne “a provider for his family, a friend to many, a man of faith, a natural giver to the less fortunate, a waymaker, [and] a game changer.”

When should we resume federal jury trials?

There's a pretty big internal debate going on with the SDFLA judges about whether to restart jury trials in April (as currently scheduled) or whether to postpone them again, either until the summer or fall.  

With virus numbers at all-time highs and with the new variant, it doesn't seem likely that we will be ready to restart jury trials in April.  For in-custody defendants, that would mean transportation of the defendant to and from FDC, use of the marshals, interpreters, court security officers, staff, prosecutors, defense lawyers, family members, jurors, and so on.  In other words, lots of risk...

Other districts that have tried to conduct trials have failed to keep the participants safe, pretty miserably.  For example, in in November, the EDTX tried to conduct a civil trial.  At least 13 people came down with COVID:

David O’Toole, clerk for the Eastern District of Texas, told Law360 on Tuesday that the number of trial participants who tested positive for coronavirus had increased from at least seven on Friday to 13 confirmed positives Tuesday. The positive cases include two jurors, at least three members of the defense team, a “handful of folks” on the plaintiff’s team, and three or four court staffers.

The outbreak occurred after testimony in the trial had begun:

Jury selection was held on Nov. 2 and the trial was scheduled to last for two weeks. Jurors heard testimony every day last week and on Nov. 9, according to court records.

After lunch on Nov. 9, the judge advised the jurors and attorneys that a juror who had recently been excused tested positive for the coronavirus.

The judge then suspended the trial and asked participants to get tested and provide the court with results as soon as they were received. The judge advised participants to consult with their physicians about self-quarantining.

That case didn't have the added problem of in-custody defendants who are at much higher risk for contracting and spreading the virus.  

If we restart in April, would everyone be wearing masks?  Is that fair to the defendant? Or the prosecution?  How could jurors evaluate a witness wearing a mask?  How could lawyers communicate effectively with jurors if they were wearing masks?  Wouldn't the jurors be concerned the entire time about getting sick?  Would you be able to get a fair cross-section of jurors if many of them would be seeking to be excused (justifiably)?

On that last question, here's an article from the Texas Tribune that explains some of the issues:

For example, disproportionately white juries were already a problem before the pandemic. With the coronavirus disproportionally harming Black and Hispanic communities, many defense attorneys fear fewer people of color will show up to a jury summons, as at least one Texas study has already predicted. And masked jurors and attorneys shield one another not only from germs but also from facial expressions, often crucial in trials.
Even more concerning, attorneys say, is that fewer people are showing up. The state report on trials through September said most courts saw about a 5% to 10% drop in people reporting for jury duty during the pandemic. A June survey by the Tillotson Law Firm of 650 potential jurors in Dallas and Houston showed a majority said they wouldn’t go to court if summoned without being ensured of adequate safety precautions. The number was higher for Black and Hispanic respondents.
“We know that African Americans, Latinos and other people of color have been disproportionately affected by COVID-19,” Scheiner said. “If they don’t show up for jury service in as great a percentage as they have in previous years, it may be impossible for minority defendants to have anything close to a jury of their peers.”

It's hard enough to get a fair jury during normal times.  But during a pandemic...   Here's an AP article explaining that people, understandably, just aren't showing up for jury duty.

There's also the problem of how to prepare for trial with an in-custody defendant.  It's difficult (and dangerous) to get into the jail right now to see clients. In fact, FDC is closed again this week to all visits.  

I've spoken to a lot of criminal defense lawyers on this subject and the vast majority have said that we should not be trying cases in April, unless -- and this is the big caveat -- the defendant insists on a speedy trial.  In that case, of course, the Constitution trumps and we'd have to figure out a way to conduct a trial. 

It will be interesting to see how our Court, with extremely thoughtful judges on both sides of the debate, addresses this important issue.

Michael Sherwin, Acting U.S. Attorney in DC, representing!

 Former SDFLA AUSA (and current acting U.S. Attorney in DC) Michael Sherwin is doing a wonderful job in DC with all of the craziness:

BREAKING: DOJ says "we're looking at significant felony cases tied to sedition and conspiracy," charges that have prison terms of up to 20 years.

“You will be charged and you will be found," acting US attorney in DC Michael Sherwin says. pic.twitter.com/sFe4BmkBDN

— MSNBC (@MSNBC) January 12, 2021

News & Notes

1. Three Justices discussed Taylor Swift during OA today. From the NY Times:

About 70 minutes into what had been a meandering and technical Supreme Court argument on Tuesday about whether two Georgia students could sue their college for nominal damages, a series of questions about Taylor Swift brought the issue into focus.
Justice Elena Kagan asked about “the most famous nominal damages case I know of in recent times, which is the Taylor Swift sexual assault case.”
Ms. Swift, the pop superstar, sued a Denver radio host she said had groped her. She sought $1 in nominal damages.
“I’m not really interested in your money,” Justice Kagan said, describing Ms. Swift’s thinking. “I just want a dollar, and that dollar is going to represent something both to me and to the world of women who have experienced what I’ve experienced.”
The jury sided with Ms. Swift and awarded her the dollar she had asked for. “It was unquestionable physical harm, but she just asked for this one dollar to say that she had been harmed,” Justice Kagan told Andrew A. Pinson, Georgia’s solicitor general. “Why not?”
Mr. Pinson admitted that he was only vaguely familiar with the case. But he said that proving a point, as opposed to obtaining compensation, “is not something that federal courts exist to do.”
Justice Amy Coney Barrett followed up with her own thoughts about Ms. Swift’s case. “What Taylor Swift wanted was, you know, vindication of the moral right, the legal right, that sexual assault is reprehensible and wrong,” Justice Barrett said.
And Justice Neil M. Gorsuch said the court should be wary of penalizing plaintiffs who act on principle, including “those like Ms. Swift who have some scruple or reason not to seek more, who could.”
By the end of the argument, it seemed that the singer’s stance would help that of the students in the case before the justices, Uzuegbunam v. Preczewski, No. 19-968.

2. Here's an article about another white collar conviction that was reversed, this time by the 3rd Circuit, where prosecutors stretched the criminal code. It is very strange to me that more district judges don't grant defense motions to dismiss instead of forcing defendants to go to trial (and risk huge sentences) to develop the law. Where motions to dismiss are granted, prosecutors can appeal, and if the defense/trial judge is wrong, the appellate court can say so and the case will proceed.  But if the defense is right, then the defendant won't have suffered through the unbelievable burden (emotional, financial, and so on) of proceeding to a trial.  

3. Speaking of those rare, great district judges -- a big shout-out to Judge Middlebrooks for this order, dismissing a case with prejudice.* 

Here's the beautifully written conclusion, defending the Constitution and the rule of law:

I appreciate that the historical moment we are living through, which gave rise to the temporary suspension of grand juries, prevented the Government from obtaining indictments in this District from approximately March 26, 2020 to November 17, 2020. But our legal system has experienced public emergencies before, and it will experience them again. Allowing the applicability of our constitutional norms to ebb and flow with the times is not becoming of a democracy under the rule of law. Indeed, if our laws are to carry any force, they must stand despite the trials and tribulations of society. Congress may certainly make exceptions; however, it has not done so here. In fact, in March of 2020 when the Department of Justice asked it to suspend criminal statutes of limitations during the coronavirus pandemic and for one year thereafter, Congress declined to make such a special dispensation.

*Full disclosure: I'm the defendant's lawyer in the case.  As you know, I rarely post my case-related stuff on the blog, but this is an important order on an issue that is recurring in this district and around the country so I thought it was important to get it out.