Rest in Peace, Senator Graham

By John R. Byrne

Senator Bob Graham passed away yesterday. He was a great leader for Florida and our country during his years as a state representative, state senator, Governor of Florida, and, most recently, as a United States Senator from 1986 to 2005. 

During his nearly 20 years in the Senate, the Harvard Law graduate helped select numerous district and circuit court federal judges, many of whom are still serving today.

Graham was well-respected on both sides of the political aisle, reflected by key positions he held, including as chairman of the Senate Intelligence Committee in the aftermath of the 2001 terrorist attacks. And he was a true Floridian, born and raised in Coral Gables and attending the University of Florida as an undergraduate.

The Herald covers his incredible life and career here. If you hit a paywall, here is the AP write up. 

Rest in peace, Senator Graham.

Should Trump be excused from his state trial…

 … so that he can attend his son's high school graduation and the U.S. Supreme Court argument in his case?

Despite your views of Trump, isn't this a no-brainer? Why is the judge giving him a hard time on these things? 

Meantime, Trump apparently fell asleep during trial. But we don't have cameras to see it. Just ridiculous. 

We've all seen judges and jurors nod off during trials. The Supreme Court has said that it's not ineffective for a lawyer to fall asleep during trial... what about a defendant?

In other news, it looks like the Supreme Court is going to reverse another conviction because of prosecutorial overreach.  I enjoyed this exchange with Lisa Blatt:

But Justice Sonia Sotomayor pointed out that the statute applies to rewards only "in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more," she said.

"I'm sorry, doesn't the nexus requirement get rid of most of this?" she asked.

"The doctor who removes your wart, fine. But the doctor who takes your gallbladder out or does your face, like my plastic surgeon, no, that's worth over $5,000," Blatt answered, drawing laughter in the courtroom.

News & Notes

1.SCOTUS will hear Fischer v. United States on Tuesday, which will impact the January 6 cases as well as others. The issue: Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence. 

 The WaPo has more here, as does SCOTUSBlog. Many are expecting, yet again, for the Supreme Court to say that prosecutors and lower courts have stretched statutes too far.

2. Speaking of SCOTUS, here's a nice AP piece about Lisa Blatt from Williams & Connolly, who has argued almost 50 cases before the High Court. A snippet:

She can be strikingly informal, in one case referring to the highest court in the land as “you guys.” She is often blunt, once telling Justice Elena Kagan that her question was factually and fundamentally wrong. She has resorted to the personal, in one case where she felt her Harvard-educated opponent was being condescending. “I didn’t go to a fancy law school, but I’m very confident in my representation of the case law,” the University of Texas graduate said.

“Texas is a fine law school,” Justice Ruth Bader Ginsburg said, just as the arguments were ending and before the court handed Blatt a unanimous win.

Blatt also can be hyperbolic, cautioning last year that a decision against her client, a Turkish bank, would be “borderline, you know, cataclysmic.” A ruling that recognized a large swath of Oklahoma as tribal land would have “earth-shattering” consequences, she said in 2018. The justices risked causing “madness, confusion, and chaos” if they ruled for a high school student who was suspended from the cheerleading squad over a vulgar social media post.

3. Linda Greenhouse has this op-ed about whether the Supreme Court needs to get along or not. From the conclusion:

The Supreme Court and other appellate courts are categorized in the judicial literature as collegial courts. “Collegial” in that usage is a term of art. It doesn’t mean that the judges necessarily get along. It means that these multimember courts act as collectives, when a majority coalesces. In a forthcoming memoir, “Vision,” Judge David Tatel, who recently retired from the U.S. Court of Appeals for the D.C. Circuit, offers as good a definition of judicial collegiality as I have seen. “Judicial collegiality,” he writes, “has nothing to do with singing holiday songs, having lunch or attending basketball games together. It has everything to do with respecting each other, listening to each other and sometimes even changing our minds.”

Years ago, Mark Alan Stamaty used a “Washingtoon,” his cartoon that ran regularly in The Washington Post, to depict the Supreme Court justices walking in single file, each carrying a bundle. “The Supreme Court Goes to the Laundromat” was the title. I thought it was so funny that I kept it for years tacked to the New York Times cubicle in the Supreme Court pressroom. It portrayed, to be sure, a collegial Supreme Court.

But it was a cartoon.

4. And finally, there's a little trial starting tomorrow in NYC. So many people are saying that Trump has no chance because it's in NY. I still have faith in our jury system. I discuss it with Katie Phang on her show here:

COURT IS IN SESSION: @domarkus explains the importance of jury selection in the NYC interference trial/ hush money case. Watch full video below! pic.twitter.com/EVSSVfoXU2

— The Katie Phang Show (@katiephangshow) April 13, 2024

Judge Moore Finds City of Miami Engaged in Racial Gerrymandering

By John R. Byrne

Significant order entered by Judge Moore yesterday in the racial gerrymandering lawsuit filed against the City of Miami. After holding a bench trial back in January, Judge Moore ruled that the City violated the Constitution by drawing voting maps with the goal of having various districts in the City elect commissioners of certain races (specifically, three hispanic commissioners from the three majority Hispanic districts, a black commissioner from a majority Black district, and a white commissioner from a majority "Anglo" district).

The Court wrote: "[W]hether the City believed the pursuit of diversity in representation could justify racial gerrymandering is immaterial. The harm stems not from the City’s objective, but rather, from the City’s racial classification of every Miamian in pursuit of that goal. By sorting its citizens based on race, the City reduced Miamians to no more than their racial backgrounds, thereby denying them the equal protection of the laws that the Fourteenth Amendment promises." 

Order excerpted below.

City of Miami Order (J. Moore) by John Byrne on Scribd

Ecuador's former comptroller on trial before Judge Williams

 It's AUSA Michael Berger versus defense lawyer Howard Srebnick.  Law360 has the story on openings:

Ecuador's former comptroller on Tuesday denied accepting and laundering $10 million in bribes in exchange for eliminating fines imposed against a Brazilian company for constructing a shoddy hydroelectric plant, telling a Florida federal court he was charged with crimes because the project's corrupt manager lied to avoid prison time.

Speaking on behalf of 73-year-old Carlos Ramon Pólit Faggioni, Howard M. Srebnick of Black Srebnick PA told a jury during opening statements that his client was charged because of the "bought and paid for" testimony of an ex-Odebrecht SA executive working with the U.S. government and that the Miami real estate allegedly used to launder the bribes came from legitimate transactions by Pólit's son.

"Carlos Ramon Pólit did not launder a single dollar" and former Odebrecht executive Jose Santos "negotiated a deal like no one else on the planet Earth" to avoid going to prison over paying bribes to make heavy fines against his company go away, Srebnick said.

Pólit was charged in 2022 with conspiracy, concealing the bribes through a series of intermediaries and spending the illicit proceeds on expensive South Florida real estate, including a house in the exclusive community of Cocoplum in Coral Gables, Florida.

Should Adeel Abdullah Mangi be confirmed to the Third Circuit?

 The NYT has an opinion piece about the issue and starts with a story about our own Judge Raag Singhal:

In 1999, a Florida lawyer, Anuraag Singhal, represented a man convicted of gunning down a police officer. Singhal had to somehow persuade a jury that his client, Jeffrey Lee Weaver, should face life in prison rather than the electric chair, the punishment the hard-charging prosecutor sought.

“I hope you can find some love in your heart for Jeff Weaver, and I hope you’ll let him die in prison,” Singhal said, according to a report in The Sun Sentinel, the local newspaper. The article described tears rolling down his cheeks and his voice breaking with emotion as he pleaded for Weaver’s life. Singhal won the day. A divided jury recommended life in prison.

Singhal was clearly a very talented attorney and a man on the rise. He would become active in conservative legal circles, joining the local chapter of the Federalist Society. In 2019, President Donald Trump appointed him to a federal judgeship in Florida. He was confirmed that December with a bipartisan Senate vote of 76 to 17. Evidently no one raised a peep about his defense of a man who killed a police officer, nor his pivotal role in reducing the man’s sentence despite Republican posturing about protecting law enforcement.

Among the Democratic senators who voted to give Singhal this lifetime appointment were three centrists who often burnish their bipartisan bona fides and tough-on-crime credentials: Catherine Cortez Masto and Jacky Rosen, both of Nevada, and Joe Manchin of West Virginia.

So it is striking that these same three senators have come out to announce that they will not support an eminently qualified nominee of their own party’s president after Republican senators and conservative activists smeared him, first accusing him of being an antisemite and, when that effort fizzled in the face of staunch support from mainstream Jewish organizations, of being soft on crime and supporting cop killers.

This is an odd comparison.  Unfortunately and unjustly, Judge Singhal did face a lot of opposition when he first tried to become a judge.  His name went up over 15 times to the Governor for state circuit judge before he was finally appointed.  Then he distinguished himself as a judge, so the (ridiculous) issue of who he represented as a criminal defense lawyer became a non-issue (but only sort-of because Senator Nelson refused to return his blue-slip in 2018).  Second, and this is not meant to be a criticism of Mangi, but Judge Singhal ensured the Sixth Amendment rights of his client, a criminal defendant.  The criticism of Mangi seems wrong as well, but it's different than any potential critique of Judge Singhal for giving a strong closing argument for his client.

Monday news and notes

 1.  The DBR covers the tragedy involving Judge Matthewman's son.

2.  The NYT wrote about Trump's lawyer, Todd Blanche.  I had him on the podcast here, if you'd like to actually hear from him.

3.  DOJ believes it doesn't need to comply with subpoenas.  Judge Ana Reyes had a different idea.  Via Politico.

4.  Some are calling on Justice Sotomayor to resign so Biden can appoint her successor and there is not another RBG situation.

5.  Reuters: Justice Breyer is going to hear cases on the 1st Circuit.

Another SDFLA acquittal

 This one was before Judge Rodney Smith, who granted a Rule 29 motion.  Congrats to the defense lawyers -- Sam Rabin and Jessica Duque.  (I am particularly proud of Jessica, a former student in my White Collar Seminar at UM).  

Jay Weaver of the Miami Herald covers the case here:

Two years ago, a South Florida lawyer was charged with her fiancé and others in what appeared to be a textbook conspiracy case accusing them of applying for million of dollars in federal government loans meant to help small businesses survive during the COVID-19 pandemic. Pembroke Pines attorney Mariel Tollinchi had to post a $250,000 bond, including $50,000 in cash, and wear an electronic ankle bracelet, to gain her release before trial while her liberty and law practice remained in limbo. But on Friday, Tollinchi, 37, gained her freedom when a federal judge acquitted her of fraud, money laundering and identity theft charges after prosecutors completed their side of the case during a jury trial in Fort Lauderdale. The evidence in the case was so weak that U.S. District Judge Rodney Smith granted her lawyers’ motion for acquittal on all charges before they even put on a defense. “Intent was the issue at trial, and the government failed to prove any intent on her part to defraud the [pandemic] loan program,” her attorneys, Jessica Duque and Sam Rabin, said Monday after the week-long trial. They called Tollinchi a “victim” of her former fiancé’s deception. Tollinchi’s legal victory — which kept her from being convicted, going to prison and losing her law license — followed a string of similar outcomes against almost all of the other defendants charged in the $8 million pandemic loan fraud case.

***

But at Tollinchi’s trial, prosecutors with the U.S. Attorney’s Office were unable to prove that Tollinchi conspired with her former fiancé, Philossaint, to file falsified applications for PPP and other loans, which were guaranteed by the Small Business Administration after Congress passed the CARES Act in March 2020. Prosecutors accused Tollinchi of fabricating loan applications for four businesses: The Technical Advantage, Ferro’s Entertainment and Production, Perfect Landscaping, and a nonprofit charity, Cinda Foundation. All of the businesses were owned by either her or her parents, according to the indictment. The loan requests were for a total of $253,865; of that amount, Tollinchi received about $142,000 and her parents the balance, according to the indictment. Prosecutors claimed that Tollinchi conspired with Philossaint to file bogus applications for the Paycheck Protection Program and the Economic Injury Disaster Loan program, including falsifying business revenues, number of employees, payroll expenses and corporate taxes. The SBA agreed to forgive the loans, which were processed by financial institutions, as long as they were used for payroll and other overhead expenses. Rabin, a veteran criminal defense attorney, said Tollinchi filed “legitimate” paperwork with her loan applications and tax records but Philossaint “doctored” them to maximize his commission fees — without her knowledge. “She didn’t see it coming,” Rabin said. His partner, Duque, said if federal authorities had investigated the case more deeply, they would have discovered that Philossaint and Tollinchi were not in cahoots. “She was absolutely a victim in all of this,” Duque said.