Veterans Day

Rumpole has his yearly post up about Veterans Day.  It's a good read.

The courts are closed today, but what about your office?  Seems like most people are working. True?

Is your office closed today, on Veterans day?

Yes, my office is closed when the courts are closed. Yes, my office is closed when the schools are closed. No, my office is open except for holidays like Thanksgiving. No, my office is open when the stock market is open. No, my office is open every day.  

pollcode.com free polls

FDC-Miami holds first Daddy-Daughter Dance

This is both incredible and awfully sad at the same time (via the Miami Herald):

The bureau hosted its inaugural Daddy-Daughter dance to create an enduring memory, one that can carry inmates to the outside world with a different perspective and offer daughters the hope that there will be more such moments. It is part of the bureau’s broader reentry program to reach out to the children and families of offenders and strengthen their bonds, critical for transitioning back home. “You are a key to the success of your father,” Federal Bureau of Prisons Director Charles E. Samuels Jr., told the 20 girls, aged 4 to 18, who had assembled to meet their fathers, all minimum-security, nonviolent offenders.
In a third-floor prison meeting space transformed into a ballroom with a fairytale theme, 13 fathers in suits and ties and tuxedos spent two hours with their girls, this long-held tradition unfolding without the harshness of uniforms and visiting rooms and prison walls. They danced. They swayed. They held tight. They laughed. They cried. And these fathers who have been gone for years remembered the chapters they had missed: birthdays, holidays, first tooth, first crush, first heartbreak.
Some of the girls are so young, they only know a father confined; others are old enough to remember what life was like when their father was home.
“I haven’t been there for so many special moments,” said inmate Michael Rangel, 40, his eyes welling up. The father of three daughters has been in prison almost three years for cargo theft and is scheduled to enter a halfway house in January. “I talk to them and email them all the time, but it’s not the same as being there.”

The whole article is worth a read, and there are some great pictures by Al Diaz at the Herald link.

6th Circuit upholds gay marriage ban, creates circuit split

It's an interesting debate about the role of judges.  Is it the judiciary's duty to defer to the will of the people or to provide a check against the majority while upholding our constitutional rights.  I think the dissent has the better of this one (here are both opinions):

Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. The framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Meantime, Sandy Yates, the wife of Supreme Court litigant John Yates, posted in our comment section for yesterday's post:

Just to clarify a couple of points. The fish measured off shore had been frozen for 4 days. When remeasured on shore were put up a metal conveyor and dumped into a vat of water in August in Florida. Hmmm, do you think they may have thawed out. The average fish on shore were 1/2 on bigger than off shore. In addition the FWC officer testified he does NOT measure fish in accordance with federal law. Now, add the fact that the FWC expert witness provided a document with an analysis of measuring the fish the correct way those fish (even frozen) were mostly over 20 inches. Not for the clincher. While NOAA was running around getting this "paper shredding indictment", the head Law Enforcement officer for the whole US was in front of Congress for shredding 80% of his files while being investigated by the Inspector General's Office for abuse of fisherman. Ironic, don't you think.

Go get 'em Mrs. Yates!

"No, I'm not talking about Congress. I'm talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?"

That was Justice Scalia today in the "fish case", Yates v. U.S., going after the government lawyer for his argument on the statute.   SCOTUSBlog has a summary of the oral argument, which looks like it was a rough ride for the SG's office:

Within minutes, Scalia leaned forward and, accusingly, told Martinez that he was defending the law and its use for someone who got only thirty days.  “What kind of sensible prosecutor does that?  Who do you have who exercises prosecutorial discretion?  Is it the same guy who brought Bond, last Term?” — a reference to a decision in which the Court had ruled that the Justice Department had gone too far in using a law against the spread of chemical weapons to prosecute a woman for trying to poison her husband’s lover.
Scalia pressed on, noting the potential for a twenty-year prison sentence under this law, and asking “what kind of mad prosecutor” would use that law in a case like this one?  Martinez weakly responded that the prosecutors had not asked for a twenty-year sentence against the fisherman.
Justice Ruth Bader Ginsburg then interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors.  Martinez answered that the manual for U.S. attorneys told them that, in choosing what crimes to charge, to go for the “most severe available.”
In view of that, Scalia retorted, the Court was going to have to be “much more careful” about how it interpreted federal criminal laws.  When Martinez tried to portray the fisherman as someone who ordered the destruction of evidence, disobeyed a federal officer, and worked out a cover-up scheme, Chief Justice John G. Roberts, Jr., commented: “You make him sound like a mob boss.”
Just what sentence did prosecutors recommend here, Justice Kennedy asked.  Martinez said twenty-one to twenty-seven months, but then added that thirty days here was “reasonable” and twenty years “would have been too much.”
The hearing’s tone had changed totally, and Martinez was on the defensive throughout the remainder of his time.  He tried to recover by going over the specific words and headings in the law, trying to show what Congress had intended for the law.
As he was nearing the end of his half-hour, Martinez was suddenly confronted by Justice Samuel A. Alito, Jr.   The lawyer, the Justice said, had a lot of arguments on the fine points about the law, but “you are asking us for something that is pretty hard to swallow,” that this law could be used for “really trivial matters.”
When Martinez protested that the law would not be used for “trivial matters,” Alito conjured up just such small offenses as throwing a single trout, illicitly caught, back into a lake, and then Justice Breyer asked about kicking a small ember away to try to conceal a forbidden campfire in a public park.  “You could multiple the examples beyond belief,” Breyer said.
In between those exchanges, Justice Kennedy commented acidly that the Court perhaps should no longer refer to the concept of “prosecutorial discretion” if it was open to use as in this case.
Martinez’s woe had started with Justice Scalia, and it never ended until he sat down.

Judge Hoeveler's retirement reception

Here he is with some of his colleagues from last week's reception honoring him.

Ft. Lauderdale jury finds UBS executive not guilty in tax case

Matthew Menchel represented Raoul Weil in this lengthy trial before Judge Cohn.  Here's the AP's Curt Anderson:

A federal jury acquitted a former top Swiss banking executive of U.S. charges that he conspired with wealthy Americans to hide $20 billion in secret accounts from the Internal Revenue Service.
Jurors deliberated just over an hour before returning the not guilty verdict for Raoul Weil, formerly the No. 3 executive at UBS AG. He had faced up to five years in prison and a $250,000 fine if convicted of conspiring to defraud the U.S. government.
"We're obviously pleased with the verdict. This was a case that should never have been brought," said Weil's attorney, Matthew Menchel.
...
In the courtroom, Weil hugged his wife and lawyers, clenching both fists when the verdict was announced.
Weil was the highest-ranking Swiss banker prosecuted under an IRS and Justice Department crackdown on Americans' use of offshore accounts to dodge U.S. taxes. In 2009, UBS paid a $780 million U.S. fine and disclosed names of thousands of American account holders to the IRS, many of whom were later prosecuted.

"An estimated 20,000 persons, or more, ... are in prison for crimes to which they pleaded guilty but did not in fact commit."

And those are conservative numbers according to Judge Jed Rakoff, who has written a compelling piece explaining that innocent people are pleading guilty to crimes that they have not committed.  There is a lot to blame for this phenomenon but he offers this solution:

What can we do about it? If there were the political will to do so, we could eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys.

Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.
I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.
As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.
The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.
Would a plan structured along these lines wholly eliminate false guilty pleas? Probably not, but it likely would reduce their number. Would it present new, unforeseeable problems of its own? Undoubtedly, which is why I would recommend that it first be tried as a pilot program. Even given the current federal rules prohibiting judges from involving themselves in the plea-bargaining process, I think something like this could be undertaken, since most such rules can be waived and the relevant parties could here agree to waive them for the limited purposes of a pilot program.
I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?

Stop using Courier (and Times New Roman)

Font choices are in the news because the Massachusetts Supreme Court is still using Courier, as are a number of judges in this District.  You must stop!  From the Boston Globe:

The court’s opinions all come down in Courier, the old-fashioned typeface designed to mimic electric typewriters. Courts are known for being tradition-bound, but today the SJC is one of only five state high courts that still issue opinions in Courier. And Massachusetts is one of only three states—along with Alabama and New Jersey—that essentially force appeals court attorneys to file their briefs in the font.

As a result, Massachusetts court proceedings have an almost uniquely retro look. The US Supreme Court publishes its opinions in neat, literary Century type. The State Department defected from Courier a decade ago in favor of Times New Roman. Even middle-school students can print their papers in high-toned Bodoni or Garamond.

“If the court asked, ‘So, would you like to stop using Courier?’ there probably would be a tsunami of, ‘Yes, please!’” said Susan Sloane, the director of Legal Research and Writing at Northeastern University School of Law.

Why does Massachusetts cling to Courier? The habit began with typewriters, of course, but its persistence in 2014 offers an illustrative window into the workings of the court, where deference to judges—and to precedent—governs things that have nothing to do with the law itself.

In the type world, Courier is what’s called a “monospaced” font, in which letters are squeezed or stretched to have equal width and spacing; for example, Courier adds a wide tail to lowercase “i” and squishes “w,” so they take up the same amount of room on the page. Most fonts used for texts today—including the one you’re reading—are “proportional,” meaning the spacing of each letter varies according to its size. These are easier to read, but didn’t work for typewriters, which were mechanically unable to vary spacing or the width of the metal type.

For decades, most appellate court briefs and opinions were produced on Courier typewriters, so they all looked the same. They also all had roughly the same number of words per page, because of the font’s uniform monospacing. So judges could conveniently and fairly set a page-count limit on their length.

With the advent of computers, lawyers began dabbling in different fonts that looked better—but also let them squeeze way more text onto the page. A 50-page brief might have the equivalent of 70 pages of Courier text in it. Many overwhelmed courts responded by passing rules requiring the use of Courier or a similar monospaced font.

In 1999, the Massachusetts SJC imposed a restriction in its Rules of Appellate Procedure, which govern the form of legal briefs. “Only a monospaced font is allowed,” that rule says, and Courier is the only one suggested. If there were any doubt as to why, SJC clerk Francis Kenneally points out, you can actually find a note in the rules explaining that it’s to prevent lawyers from sneaking extra text into the 50-page brief limit. (The rule doesn’t apply to the more egalitarian trial courts, which accept even handwritten suits, according to Michael Donovan, clerk of the Suffolk County Superior Court for Civil Business.)

The past 20 years have seen writing and typography advocates successfully pressing courts to modernize—not only in fonts, but in other typewriter holdovers such as double-spacing and in-line citations. A top advocate for better-looking court documents is Matthew Butterick, a Los Angeles attorney who’s also a Harvard-trained typeface designer. His blog “Typography for Lawyers” and 2010 book of the same name have been influential on many courts. He considers himself something of a Courier assassin.

“Have you ever seen a book, newspaper, or magazine printed in Courier? Never,” Butterick said in an e-mail. And for good reason, he said: It’s hard to read, and the written equivalent of “droning along in a monotone.”

 Butterick says stop using Times New Roman as well:

Why not? Fame has a dark side. When Times New Roman appears in a book, document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.
If you have a choice about using Times New Roman, please stop. Use something else. See font recommendations for other options.

Okay, Okay, so you don't want to read about font choices on Monday morning.  Well here's a story from USA Today on a big fight in the Supreme Court about overcriminalization:

 Look up the definition of "fisherman" and John Yates' wrinkled, weather-beaten, Winston-puffing mug might appear. But these days, he's limited to restoring antique furniture and dealing in scrap metal.
Now look up the Sarbanes-Oxley Act of 2002, and you'll find the federal government's Enron-inspired crackdown on financial fraud and document shredding.
But three years ago, the act reeled in Yates for tossing 72 undersized red grouper into the Gulf of Mexico.
On Wednesday, the Supreme Court will examine the curious case of Yates v. United States, which asks the question: Was it the government that went overboard?
"It's obvious that a fish is not a document," says Yates, 62, over a lunch of grouper bites and Budweisers on the Gulf coast, which has been his home for the past 15 years. "You don't have to be that smart to figure that out."
Does the nation's highest court have bigger things to fret about than six-dozen 19-inch fish? Certainly.
But the justices agreed to hear Yates' appeal, even after two lower federal courts determined that his prosecution under a law targeting white-collar criminals was justified. It mirrors a similar case last year, in which the government prosecuted a jilted wife's clumsy effort at revenge under a federal chemical weapons treaty. The court reversed that one, 9-0.
The facts of the case: Yates was captaining the 47-foot "Miss Katie" in 2007 when a state conservation officer with federal enforcement power boarded, measured some 3,000 pounds of fish and found 72 grouper under the 20-inch minimum. He ordered them returned to shore.
Not throwing back in the undersized fish is a civil violation, punishable by a fine or fishing license suspension. But this fish tale got more complicated when Yates allegedly ordered a crew member to throw the offending fish overboard and replace them with longer ones. When the fish were remeasured on dry land, the government smelled a rat. So to speak.
It's a charge Yates still denies to this day; He says they were the same fish, measuring differently based on their mouths, tails and temperature. His wife, Sandy, a former paralegal, keeps a voluminous file that includes the original handwritten measurements of each fish.
Yates was convicted in 2011 of violating Sarbanes-Oxley, which carries a possible 20-year sentence for tampering with or destroying "any record, document or tangible object." He served a 30-day sentence over the Christmas holidays and still lives under a three-year supervised release program. When Sandy's sister died earlier this year, he quips, "It took an act of Congress for me to bury her in Ohio."

Bill Shepherd of Holland & Knight has written an amicus brief for NACDL supporting Yates.

"As Kim Kardashian is with her husband, I'm not going to keep you long."

That was Chief Judge Ed Carnes today at Robin Rosenbaum's investiture. It was a great event with lots of good speeches.  Judge Carnes also invoked the song "Don't Rock the Boat Baby" in describing the importance of collegiality on the 11th Circuit.



Judge Stanley Marcus (who has known Judge Rosenbaum since she was his law clerk) gave a very funny talk, telling numerous jokes, which had the audience laughing out loud.  He started out by saying that since this was the third investiture that he was speaking at for Judge Rosenbaum, he felt a little like Zsa Zsa Gabor's 8th husband: he knew what was expected of him, but he wasn't sure how to make it different.



In response, Judge Rosenbaum said: "If you've enjoyed the entertainment, they'll be playing again next week in Las Vegas."  Then she invoked Talking Heads, "Once in a Lifetime."



Very fun event.



Here are some pictures:

Here is Judge Marcus swearing in Judge Rosenbaum.

How would you like this jury:

And here are 11 of the 12 active judges on the 11th Circuit, plus two senior judges:

Big unpublished opinion from the 11th Circuit reversing because of a judge's refusal to ask voir dire questions related to sexual preference prejudices

Judge Martin issued this 2-1 opinion in United States v. Bates, holding that it was reversible error not to ask potential jurors about their biases against "men who have sex with men." Northern District of Florida Judge Robert Hinkle dissented while Judge Richard Eaton from the Court of International Trade joined Judge Martin.  Even though the emergency order allowing two visiting judges has been lifted, its revocation only applies going forward, so it does not affect this opinion.

From the intro:

Cameron Dean Bates is a federal prisoner serving a 240-month sentence after being convicted of eighteen counts of receiving, accessing, distributing, and possessing child pornography, in violation of 18 U.S.C. § 2252A. He is also a man who has had sexual relationships with other adult men, a fact that came to be a central issue during his criminal trial. He challenges his convictions on several grounds. But we need only consider his argument that he should have been permitted to inquire of potential jurors whether they might harbor prejudice against men who have sex with men. Specifically, Mr. Bates argues that the District Court abused its discretion when it refused his request to ask prospective jurors during voir dire about any prejudice they might harbor against him on the basis of his sexual activity with other men. After careful review, and with the benefit of oral argument, we agree with Mr. Bates that the District Court should have examined whether the jurors might bear prejudices against him. While it is true that Mr. Bates stands charged and convicted of disturbing acts of receiving and distributing child pornography, we cannot condone the manner in which his convictions were obtained. As a result, we vacate the convictions.

From the end of the opinion:

The government cannot carry its burden to show that this error was harmless. If Mr. Bates is to be convicted, we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high. His convictions must therefore be vacated, and we remand this case for further proceedings.

 The court was also concerned with the amount of time the defense was given to prepare:

Although we do not decide Mr. Bates’s argument that the District Court abused its discretion by denying his motions to continue trial, on remand the District Court must assure itself that Mr. Bates has adequate resources to permit his expert to review the evidence, and enough time to pursue the evidence necessary to aid in his defense. Two circumstances of this case raise concern that Mr. Bates was not afforded the time or resources necessary to prepare an adequate defense during his first trial. First, there was a delay of several months in getting approval for funds for an expert. ...
Second, we are concerned that Mr. Bates did not have enough time to prepare his defense, given that the focus of his prosecution shifted abruptly before trial. Mr. Bates was originally charged on August 23, 2012 in a two count indictment that included only one specific date on which child pornography was allegedly distributed, and gave a range of dates spanning sixteen months over which child pornography was allegedly downloaded or accessed. On February 14, 2013, just two weeks before trial, the government superseded on the indictment, increasing the number of counts to eighteen and highlighting much more detailed information about the dates and times child pornography was downloaded, accessed, and distributed. One week after that, the government disclosed a lengthy supplementary expert report, which was also more detailed than anything Mr. Bates had gotten from the government to that point. Given these late shifts in the focus of Mr. Bates’s prosecution, and the technical nature of the evidence the government presented, we are concerned that he did not have enough time to adequately defend himself during his first trial. See United States v. Verderame, 51 F.3d 249, 250–52 (11th Cir. 1995). If Mr. Bates is retried on remand, we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.

"Never dance with a Cuban."

That was Justice Sonia Sotomayor, speaking at an event at Yale with Justices Thomas and Alito (see post below for more on the event and Alito getting turned away from brunch).  The Washington Post covers Justice Sotomayor's dance preferences:

The justice, whose family hails from Puerto Rico, said that as an appeals court judge, she was often invited to Hispanic events where salsa was being played. But she was a “potted plant” who never learned the steps.
So around age 50, Sotomayor took lessons and made a discovery: “I cannot keep a beat to save my life. But I have a facility that some of my colleagues would find very strange: I can follow.”
Amid the laughter, Sotomayor said that what she needs is a partner who can lead.
“Among Hispanic men, the best dancers in terms of keeping a beat are Dominicans, the worst are Cubans,” Sotomayor continued. “Dominicans have big, big steps--”
A doubled-over and guffawing Thomas interrupted: “That’s profiling!”
“It is, but it proves itself right a lot,” Sotomayor continued. “Cubans have these very tight little steps. Never dance with a Cuban. And Puerto Ricans I can dance with, too.”
It was the perfect set-up for the conservative Alito, with whom liberal Sotomayor frequently disagrees.
“It’s a revelation to know that Sonia likes to follow,” Alito said. “I think we’re going to start dancing in the conference room.”

“Well, he should have made a reservation. We get very busy for brunch.” -- hostess after turning Justice Alito away for brunch

Above the Law has a cute story about Justice Alito being turned away for brunch yesterday and how he handled it graciously.  This shouldn't be a big deal obviously, but when you have judges yelling at store clerks to take down signs, it's nice to hear that some judges have manners.

Anyway, three Justices were in New Haven giving a talk.  Per the NY Times:

Justice Thomas, 66, has apparently mellowed the most. He acknowledged being a “cynical and negative” law student, blaming immaturity and the unsettled political climate of the early 1970s. “I cannot say we were thinking straight about a lot of things, even if we were not using illegal substances,” he said.

“I wish I came here at a time when I could have been more positive,” he added. “There is so much here that I walked right by.”

For years, Justice Thomas had refused to return to Yale. In his 2007 memoir, “My Grandfather’s Son,” he wrote that his law degree had been tainted by affirmative action. He had, he wrote, “learned the hard way that a law degree from Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it.”

He added that he had “peeled a 15-cent price sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale.”

***

Justice Sotomayor, 60, has written that she was admitted to the law school with the help of affirmative action and that she found her time here intimidating and inspiring. She has been a frequent visitor and honoree, often drawing huge crowds, particularly after the publication of her own memoir, “My Beloved World.”

On Saturday, she said she is a poor dancer but loves salsa and does well with a strong partner. “I have a facility that some of my colleagues would find very strange,” she said. “I can follow.”

Justice Alito looked shocked. “It’s a revelation to me that Sonia likes to follow,” he said. “I think we’re going to start dancing at conference.”

The justices were questioned by Kate Stith, a law professor at Yale. She asked Justice Alito what he had been reading.

“I have two books that are inspirational,” he responded. “I keep them on a table by my bed, and I try to read a little bit of them every night. It’s ‘My Grandfather’s Son’ and ‘My Beloved World.’ ”

***

The six other justices all attended Harvard Law School, though Justice Ruth Bader Ginsburg transferred to and graduated from Columbia Law School.

Chief Justice John G. Roberts Jr., who has two Harvard degrees, was once asked whether it is healthy for the Supreme Court to consist of only justices with degrees from elite institutions.

“First of all, I disagree with your premise,” he responded. “Not all of the justices went to elite institutions. Some went to Yale.”

Speaking of judges having manners, Chief Judge Michael Moore says that Judge Cooke does not need to recuse in the Miccosukee case.  Judge Moore really did a solid for his colleague.  From the DBR:

Cooke was critical of Bernardo Roman III, the tribe's attorney who filed the federal litigation against his predecessors. Cooke said at one point that Roman "probably never read the rule of ethics."
"The court finds that these statements, while indicative of Judge Cooke's understandable frustration with the parties and proceedings, in no way demonstrate a bias or partiality," Moore wrote.
Cooke dismissed with prejudice the tribe's lawsuit on jurisdictional grounds against its former Miami attorneys: Guy Lewis and Michael Tein of Lewis Tein and Dexter Lehtinen of Lehtinen Schultz Riedi Catalano de la Fuente.

 Here's the whole order.

11th Circuit "emergency" over

On October 17, the 11th Circuit, per Chief Judge Carnes, issued an order putting an end to the emergency order that allowed cases to be decided by panels with only one active 11th Circuit judge.  Now we are back to at least 2 11th Circuit judges per panel.

Aly Palmer of the Daily Report has this story:

With his court back to nearly full strength, the chief judge of the U.S. Court of Appeals for the Eleventh Circuit has announced the end of a court emergency.
In December, Chief Judge Edward Carnes declared an emergency, saying that cases could be decided by three-judge panels composed of only one of the court's judges plus two visiting judges. At the time, four of the court's 12 slots were vacant.
Since then, three vacancies have been filled. Most recently, Judge Jill Pryor of Atlanta started work two weeks ago. On Friday, Carnes signed a new order declaring the emergency over.
Friday's order suggested that the public will continue to see decisions from panels that include only one member of the court. Carnes explained that panels composed of fewer than two Eleventh Circuit judges that have had any appeals either orally argued or submitted to them for decision before Friday remain authorized to decide the cases.
Federal law says that when federal appeals courts decide cases by three-judge panels, at least two of the judges must be members of that particular appeals court. An exception includes the chief judge's ability to certify an "emergency."

Meantime, the big federal bar shindig tonight is at the JW Marriott.  Who is in?

Judge Gold formally retires

The blog reported back in August the sad news that Judge Gold was formally retiring this month and that he would close his chambers and take inactive status.  John Pacenti of the Daily Business Review covered the story last week and reports that Judge Gold is happy about moving on to the next phase of his life:

But for now, he is focused on his baby granddaughter in New York. His wife, Susan F. Gold, retired last year as an associate professor of pediatrics and education at the University of Miami, and they want to focus on family and travel.
"It's about at this phase in my life, reprioritizing while I'm healthy," he told the Daily Business Review. "We wanted to explore really other interests in our lives together and independently."
Gold was appointed by President Bill Clinton in 1997 after serving as a state circuit judge, an attorney with Greenberg Traurig and a Miami-Dade County attorney. He took senior status in 2011.
"This is a tough week because there is a sense of sweet sorrow in retrospect, but also an excitement about living a mindful phase of my life," the 70-year-old judge said. "At this stage, it's time to ask your next question: Who are you now, and what is it you want to do with the time you have left?"
***
U.S. District Judge Federico Moreno said Gold was one of the hardest-working judges in the district."He always has been one of our more scholarly judges," Moreno said. "We are going to miss him because he was such a hard worker, but I'm delighted he wants to spend more time with his family. He certainly deserves a break." 

Judge Gold was at Judge Bloom's investiture last week and looked great. 


He handled some of the biggest cases in this district -- Exxon, UBS, Shaygan...  But more importantly than the brilliant way he handled those cases was that he was a great person and made everyone feel like they were getting a fair shake.  He'll be missed on the bench.

Supreme Court oral argument should be televised

John Oliver is so good:

Akerman lawyer Ryan Roman opens Mignonette

It's a fantastic restaurant. If oysters are your thing, there's no better place.  And it's the best lobster roll in town.  I highly recommend it. 

Plus, for better or worse, you'll likely see a bunch of judges and lawyers.  After all, owner Ryan Roman is a lawyer himself at Akerman:

Ryan Roman is an associate in the Litigation Practice Group. His commercial litigation practice includes a focus on securities litigation matters, including SEC enforcement proceedings and securities class-action defense. He has also represented portfolio companies in private equity litigation matters. In addition, Ryan is also experienced servicing clients in the hospitality industry, having defended restaurant shareholders in various business disputes. He has defended various businesses in consumer class actions, and represented companies in the enforcement of money judgments.

But he has a passion for food, running the popular food blog, MiamiRankings.

Ryan opened the joint with Blue Collar's Danny Serfer.  From the Miami.com review:

"We're both into oysters and classic raw bar ... and of course prime rib," Roman says. "So we're excited to share all that at Mignonette. Oysters are an aphrodisiac, the more you eat them, the more you love to eat them. We just want to have a place to eat cold seafood that's fun, casual and has curse words on the radio."

PS: Evoking sort of an ethical husband/wife privilege, Roman says that Blue Collar will no longer be eligible for his restaurant rankings.

 The Miami New Times review is great:

The idea for Mignonette came to the pals a year and a half ago over a bowl of ramen at Momi Ramen in Brickell. Roman was at first hesitant. What swayed him to risk pouring his life savings into the business? "I'd rather live in a restaurant than a house," he explains.
So a little more than a month ago, they decided to open Mignonette with a fairly expansive menu of simple, classic preparations. To execute their vision, they plucked Mignonette's chef de cuisine, Bobby Frank, from Blue Collar, where he was Serfer's protégé. Then they decorated the place in an "Old Florida meets New Orleans" style that includes tan leather banquettes, a marble raw bar, and hanging constellations festooned from copper pipes. There's also an intimate back room with original wall art consisting of life-size fish rendered in gold leaf by artist Reed van Brunschot.

I like the story of the two owners on the Mignonette website:

Following the adage that the pen is mightier than the sword, Ryan Roman cuts all of his steaks with a pen.  A Miami native, Roman began writing about food and restaurants in 2009, with the launch of his blog, Miami’s Restaurant Power Rankings.  Roman also contributes as a columnist for Edible South Florida.  When he is not writing about food, he is a practicing attorney with the law firm Akerman LLP.

Roman first met chef Daniel Serfer after becoming a regular at Blue Collar, but perhaps the more compelling story is when the two didn’t meet.  Unbeknownst to Roman, Serfer would read Roman’s blog while laboring away in a kitchen in New York City, during a short absence from the Miami culinary scene.  Operating under the misimpression that the namesake “power rankings” on the blog were the result of some scientific algorithm, as opposed to one person’s arbitrary opinion, Serfer dreamed of opening his own restaurant back in Miami and achieving a spot on the rankings.  When Blue Collar opened, Serfer invited Roman to a media preview, having pushed his public relations company to free up one extra seat.  The stars were aligned for the two to meet and for their friendship to begin.

Roman declined the invitation.  Unaware of the backstory that Serfer had created in his head, and generally preferring to avoid what he perceived as freebie meals, Roman saw the invitation as just another piece of PR material for the circular filing cabinet.

But unlike Sharknado, this story has a happy ending.  Roman discovered Blue Collar in due time, falling for its emphasis on comfort food, its homey vibe, and its friendly staff.
After developing a friendship during which time Roman served as best man at Serfer’s wedding and godfather to Serfer’s firstborn child (who is affectionately referred to as Steak), and during which time Roman’s fear of commitment made it impossible for him to return such favors to Serfer, the two conspired to open Mignonette.

Beth Bloom's formal investiture today (UPDATED WITH PHOTOS)

Congratulations!

Anthony Bosch pleads guilty

Here's the AP:

The former owner of a South Florida anti-aging clinic pleaded guilty Thursday to charges of illegally providing performance-enhancing drugs to athletes including high-profile Major League Baseball players, most notably New York Yankees star Alex Rodriguez.
Anthony Bosch, former owner of the Biogenesis of America clinic in Coral Gables, pleaded guilty to conspiracy to distribute testosterone before U.S. District Judge Darrin P. Gayles. Bosch, who called himself "Dr. T," faces a maximum 10-year prison sentence but is likely to get far less because of cooperation with prosecutors and with MLB's investigation into player drug use.
Defense attorney Guy Lewis said Bosch, 51, provided key information to MLB investigators that led to suspensions of 14 players, including the record season-long suspension handed to Rodriguez for this past year. Bosch also met numerous times with federal prosecutors and U.S. Drug Enforcement Administration agents, Lewis said.
"He was faithful in terms of appearing each and every time he was requested to," Lewis said. "Each and every time he appeared, answered questions and was available."
...In a plea agreement, Bosch admitted to providing testosterone to baseball players, from professionals to high school athletes. Six other people are charged in the case, and Bosch has agreed to testify against them if they go to trial.

He was also reinstated on bond:

Earlier this month, Gayles revoked Bosch's $100,000 bail because he twice tested positive after his August arrest for cocaine use and had missed appointments at drug treatment programs. On Thursday, Gayles agreed to release Bosch on bail with several new conditions, including a requirement that Bosch attended a 24-hour inpatient drug treatment program.Prosecutors did not object, and Lewis said Bosch needs the treatment badly.
"You have before you an individual who does need counseling. We recognize that. He's begging for it," Lewis said.
When Bosch is not in the treatment program, he will remain on house arrest with electronic monitoring, Gayles said. Sentencing for Bosch is set for Dec. 18.

Deputy U.S. Marshal from Miami arrested on drug ripoff charge in California

From News10 ABC in Yuba City, California:

One of three men arrested following a suspected marijuana theft is a deputy US Marshal.
Clorenzo Mack Griffin, 37, works out of the US Marshal's Service office in Miami and has been a deputy marshal since April 2010, said Drew Wade, a spokesman for the US Marshal's Service in Washington.
According to the California Highway Patrol, Griffin and two other men were in a Jeep that ran a red light around the corner from the CHP's Yuba City office on Saturday afternoon.
Following a short chase, the three occupants abandoned the vehicle near the Sutter County Jail and fled on foot.
A Sutter County sheriff's deputy saw one of the men, identified as Griffin, run into a secure area of the jail property and draw a handgun from his waistband.
The CHP says the deputy fired at Griffin, who wasn't hit, and was taken into custody along with the other two suspects without further incident.
Investigators found a large amount of marijuana in the Jeep and said their subsequent investigation determined the pot had been stolen at gunpoint from an individual in Yuba City.

 

Federal Bar invites pro bono participation

The Federal Bar Association had a nice luncheon at the Hyatt today asking lawyers to become more involved in pro bono cases at both the state and federal level.  Judge Salter from the 3rd DCA and Judge Jordan from the 11th Circuit spoke.  Good peeps.  Here's a picture from the event:

Scalia says no to sentencing on acquitted conduct

Unfortunately, he only got Justices Thomas and Ginsburg to agree with him, so the Court denied cert in Jones v. U.S.  From Scalia's dissent on the cert denial:

This has gone on long enough. The present petition
presents the nonhypothetical case the Court claimed to
have been waiting for. And it is a particularly appealing
case, because not only did no jury convict these defendants
of the offense the sentencing judge thought them guilty of,
but a jury acquitted them of that offense. Petitioners were
convicted of distributing drugs, but acquitted of conspiring
to distribute drugs. The sentencing judge found that
petitioners had engaged in the conspiracy of which the
jury acquitted them. The Guidelines, petitioners claim,
recommend sentences of between 27 and 71 months for
their distribution convictions. But in light of the conspiracy
finding, the court calculated much higher Guidelines
ranges, and sentenced Jones, Thurston, and Ball to 180,
194, and 225 months’ imprisonment.
On petitioners’ appeal, the D. C. Circuit held that even if
their sentences would have been substantively unreasonable
but for judge-found facts, their Sixth Amendment
rights were not violated. 744 F. 3d 1362, 1369 (2014). We
should grant certiorari to put an end to the unbroken
string of cases disregarding the Sixth Amendment—or to
eliminate the Sixth Amendment difficulty by acknowledging
that all sentences below the statutory maximum are
substantively reasonable.

It's terrible to me that in a free society an individual can be sentenced to conduct for which he was found not guilty.  How is this acceptable?

zzzzzzzzzzzzzzzzzzzz

Well, the federal courthouse is closed today.  It's one of those weird days, though, when schools are still open.  I wonder what most law firms are doing today?  Please post in the comments whether your firm is open or closed.

If you are working, and are looking for some interesting reading, check out this article in the Washington Post about Supreme Court reasoning:

Twice this past week readers wondered why I had forgotten a key element of one of the most basic aspects of journalism: the old who-what-where-when-and-how.
It was clear what the Supreme Court had done, they said, but where’s the why? There’s a pretty good defense for that, though it is frustrating for all: The justices never gave their reasons.
In an in­cred­ibly consequential first week of the term, the court allowed same-sex marriages to proliferate around the nation, temporarily put on hold and then gave the green light to rulings ending the bans in Idaho and Nevada, and refereed state laws governing voting in next month’s midterm elections.
All without explanation.

 Judge Kopf believes Judge Arnold would have been excellent on the Supreme Court.  President Clinton was close to nominating him instead of Breyer.  As I've said before Justice Breyer is one of the most conservative Justices on the Supreme Court as it relates to criminal justice issues, so things would have been quite different had Arnold made it instead.

With all this Supreme Court talk, you should check in with ScotusBlog tomorrow for new Court orders and cert grants.

Tick Tock

The statute is about to run on the Scott Rothstein case.  And a big indictment came out today against Former regional vice president of TD Bank Frank Spinosa, who is represented by Sam Rabin. Judge Bloom got the case. The new judges have all the fun...

From the Sun-Sentinel article:

Spinosa, 53, was released on $250,000 bond after a brief appearance in federal court. He was placed on house arrest with electronic monitoring and is scheduled for arraignment on Oct. 24, court records show.

His lawyer, Samuel Rabin, said Spinosa will plead not guilty and plans to go to trial on the allegations.

"He's innocent and he wants his day in court," Rabin said.

Spinosa has known for years that he was under criminal investigation and had offered to surrender if the government filed charges against him, Rabin said. He called the arrest at Spinosa's home "totally unnecessary" and "one of those typical Rothstein case flourishes."

The grand jury indictment, unsealed Friday morning, charges Spinosa with one count of wire fraud conspiracy and five counts of wire fraud. Each charge carries a maximum punishment of 20 years in federal prison and hefty fines.

Spinosa is accused of facilitating Rothstein's fraud by giving investors a "false sense of security" and inducing them to invest hundreds of millions of dollars with Rothstein by lying about how much money was in Rothstein's bank accounts and who could withdraw it.

Spinosa signed off on fraudulent so-called "lock letters" that led Rothstein's investors to believe that money in some of Rothstein's bank accounts was being held only for them, according to the charges.

Prosecutors also say Spinosa lied and used a script containing "talking points" prepared by Rothstein when he met with some investors and participated in conference calls with others to help reassure them their investments were safe.

Rothstein's fraud involved fooling investors into thinking they were making huge profits by investing in confidential legal settlements. He told investors they were making a lot of money by fronting smaller lump sums to plaintiffs who had won settlements or judgments and wanted quick access to cash. The investors would supposedly reap huge profits by later collecting the full amount of the settlements.

Rothstein later admitted it was all a lie and he used the money to pay for what he liked to call his "rock star lifestyle." Cash from new investors was used to pay out "profits" to older investors and keep the fraud alive.

"While defendant Spinosa and Rothstein did not discuss the fraudulent nature of the confidential settlements, they did agree to the preparation of the false and fraudulent 'lock letters' and the making of false statements to investors," according to the indictment.

Change (UPDATED)

The local rules committee has proposed new rules here. Chief Judge Moore ordered:

IT IS FURTHER ORDERED that the Court will conduct an en banc public hearing on the proposed rule amendments on November 14, 2014, at 2:00 p.m. at the Paul G. Rogers Federal Building and United States Courthouse, 701 Clematis Street, West Palm Beach, Florida 33401. Those who desire to appear and offer oral comments on the proposed rule amendments at this hearing shall file written notice to that effect with the Clerk of the Court no later than five days prior to the hearing. Those who desire to offer only written comments on the proposed rule amendments should do so in accordance with the mechanism provided on the Court’s website in connection the publication of the proposed rule amendments.

En banc in West Palm on a Friday afternoon... I'm sure the Miami judges are thrilled! (UPDATE -- A commenter informs me that Judge Rosenberg's investiture is that day in West Palm Beach, so the judges will be there anyway.) But hey we are a courteous bunch. From the intro to the proposed rules:

Members of the bar and the Court are proud of the long tradition of courteous practice in the Southern District of Florida. Indeed, it is a fundamental tenet of this Court that attorneys in this District be governed at all times by a spirit of cooperation, professionalism, and civility. For example, and without limiting the foregoing, it remains the Court's expectation that counsel will seek to accommodate their fellow practitioners, including in matters of scheduling, whenever reasonably possible and that counsel will work to eliminate disputes by reasonable agreement to the fullest extent permitted by the bounds of zealous representation and ethical practice.

I wonder if someone is going to propose that the Rule say: "that counsel AND THE COURT..."

Meantime, there is a new holiday schedule.  

Peace and Love!

Lawyers heart adverbs

The WSJ has a whole article about the love affair:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”
Not everybody, however, looks askance at the part of speech. Indeed, there is at least one place where the adverb not only flourishes but wields power—the American legal system.
Adverbs in recent years have taken on an increasingly important—and often contentious—role in courthouses. Their influence has spread with the help of lawmakers churning out new laws packed with them.
A U.S. appellate court, for example, this past summer wrestled with the question of whether a defendant could have “knowingly” aimed a laser pointer at a helicopter if he mistakenly assumed the beam wouldn’t reach the aircraft.
Words such as “knowingly,” “intentionally” and “recklessly,” which deal with criminal intent, pop up most frequently, but plenty of other adverbs have enjoyed the spotlight. When the U.S. Supreme Court in June recognized religious protections of closely held companies, justices pondered the significance of an adverb in a 1993 federal statute that guards against laws that “substantially burden” the exercise of religion.
“Indiscriminately” was pivotal in a federal appeals court ruling in January striking down the “net neutrality” rules adopted by the Federal Communications Commission. Preventing broadband providers from charging sites like Netflix more money for faster speeds would effectively treat them like common carriers, which are required by law to “serve the public indiscriminately,” the court said.
In a tax case from the summer, lawyers for the Internal Revenue Service defended their decision to freeze the bank accounts of a former Pennsylvania state senator, only to see their arguments founder on the word “quickly.” Tax law allows the government to immediately freeze the assets of a suspected tax cheat who “appears to be designing quickly” to hide his wealth. But the judge said there was nothing quick about the defendant’s cash and real-estate transactions, which spanned several years.
“Contrary to the ordinary view that adverbs are superfluous, law generally, and criminal law especially, emerges through its adverbs,” James M. Donovan, a legal anthropology professor at the University of Kentucky College of Law, recently wrote in a paper on the subject.
Mr. Donovan, who runs the school’s law library, said that he was immediately drawn to the subject after encountering Mr. King’s “On Writing: A Memoir of the Craft” in a faculty reading group. “His blanket dismissal of the importance of adverbs got me uncomfortable,” said Mr. Donovan, “but it took a while to articulate why.”
The number of adverb-dense disputes over how to properly construe a criminal statute has surged since the 1980s, according to a case-law search conducted by Brooklyn Law School professor Lawrence Solan, author of “The Language of Judges.” On the federal level, he said, the criminalization of white-collar and regulatory offenses in the past 30 years has been especially good for adverbs. So has a trend in courts toward painstakingly precise textual analysis, the professor said.
In point of fact, an adverb once got a hearing before the nation’s most eminent jurists.
A U.S. Supreme Court case in 2009, Flores-Figueroa v. U.S., ultimately turned on the modifying reach of the word “knowingly,” tucked into a federal statute defining the crime of aggravated identity theft.
The petitioner was a Mexican citizen arrested for giving his employer counterfeit Social Security and alien registration cards that displayed his name but other people’s identification numbers. He convincingly argued that the presence of “knowingly” in the law required the government to prove that he knew the IDs were fake.
The justices unanimously agreed with him. “As a matter of ordinary English grammar, ’knowingly’ is naturally read as applying to all the subsequently listed elements of the crime,” Justice Stephen Breyer wrote.
Bryan Garner, editor of Black’s Law Dictionary, is regarded by scholars as the dean of legal prose. He says legislators and adverbs need one another.
Statutes “have to be hyper-literal and generic,” he said. “A fiction writer might say he barreled down the street. There is no way a statute can say, ‘If you barrel your car.’ ”
Says Mr. Garner: “No legislative drafter ever says: Did I pull my readers in? That’s something Stephen King has to ask.”

Congratulations to Judge Federico Moreno

He was just appointed by the Chief Justice of the Supreme Court to serve as a member of the Executive Committee of the Judicial Conference. This is a big honor for our former chief.

Anthony Bosch tests positive for cocaine...

...and Judge Darrin Gayles revoked his bond. From Curt Anderson:

The former owner of the clinic at the center of Major League Baseball's recent performance-enhancing drug scandal had his bail revoked Monday because of recent positive tests for cocaine use.

U.S. District Judge Darrin P. Gayles ordered Anthony Bosch jailed immediately. Bosch tested positive twice in August for cocaine use, after he was released on $100,000 bail under conditions including no use of illegal drugs and random urine testing. Gayles also found Bosch wasn't regularly attending voluntary drug treatment.

"I simply have no confidence in his ability to appear as required," Gayles said at a hearing.

Prosecutors say Bosch's Coral Gables clinic, Biogenesis of America, was involved in a conspiracy to provide performance-enhancing drugs to MLB players and even high school athletes. Fourteen MLB players were suspended following the probe, including a season-long suspension this year for New York Yankees star Alex Rodriguez.

Bosch, 51, is scheduled to plead guilty next week and has been cooperating in the investigation against others who were charged, including possibly testifying in those cases. Assistant U.S. Attorney Michael "Pat" Sullivan, however, said authorities were well aware of Bosch's chronic drug problem and fondness for South Beach nightclubs.

"We knew from our investigation that Mr. Bosch was one who liked to party," Sullivan said.

Bosch attorney Guy Lewis, himself a former Miami U.S. attorney, pointed out that Bosch had not tested positive for cocaine since Aug. 18 and was doing his best to attend a drug treatment program. Lewis denied that Bosch has been frequenting nightclubs and said that he is living up to his cooperation agreement with prosecutors.

"I can tell you he's not out on South Beach," Lewis said. "The last thing he's doing is out being notorious in South Florida. He has a drug problem, though. He is addressing it."

Although Sullivan did not ask for Bosch's bail to be revoked, Gayles refused to simply place Bosch under a curfew or order more frequent urine testing. Gayles also was unmoved by Lewis' comment that Bosch was under a great deal of pressure and was the subject of death threats.

"The pressure on the defendant, I don't find a mitigating factor," the judge said. "I don't find that he's a good candidate to remain out on bond."

Look who is all new and fancy on First Monday in October

Yup, the Supreme Court of the United States is back in business and it has rolled out a new website.

The October 2014 Term starts out with an interesting argument this morning in Heien v. North Carolina, in which the Justices will consider whether a police officer’s mistake of law provides the individualized suspicion that the Fourth Amendment requires to stop a car. Here's the preview from ScotusBlog:

The Supreme Court will open the October 2014 Term on Monday morning by hearing arguments that may bring back bad memories of convoluted law school discussions: may an officer’s reasonable “mistake of law” provide reasonable suspicion to stop a car under the Fourth Amendment? The Court has previously ruled that a reasonable mistake of fact will not violate the Fourth Amendment. Although Jeff Fisher, an experienced Supreme Court litigator, has presented some formidable arguments to rule for Heien, he may face an uphill battle persuading a majority of Justices that a reasonable, but mistaken, interpretation of state law should receive different constitutional treatment.

Judge Darrin Gayles' investiture

It was a packed house:

Some other pictures:

Another monster sentence

This time it's 27 years for mortgage fraud. 27 YEARS! And that's less than the prosecutor was asking for...

From the Tampa Bay Times:

Florida developer Domenic Rabuffo was sentenced Tuesday to more than 27 years in federal prison for a North Carolina mortgage fraud scheme that bilked four major banks out of more than $50 million in loans made to dozens of Floridians who posed as straw buyers.

The Miami man, now 78, is likely to spend the rest of his life behind bars.

Since he was jailed without bail after his indictment in January, Rabuffo has been hospitalized several times and had carotid surgery to restore the flow of blood to his brain. His lawyers say he also has diabetes and a degenerative spinal disc problem that has in a wheelchair.

U.S. District Judge K. Michael Moore noted that the mortgage fraud scheme contributed to the country’s economic decline and indicated his sentence was partially designed to deter others.

Rabuffo is appealing the jury verdict that found him and several others guilty of conspiracy to commit mortgage fraud and multiple counts of bank fraud.

Rabuffo’s lawyer at sentencing Tuesday in Miami said a 60 month sentence would be appropriate.

Assistant U.S. Attorney Dwayne Williams asked for the 327 month sentence, slightly more than 27 years and at the top of the sentencing guidelines for a defendant with his record.

UPDATE -- Meantime, Scott Rothstein's ex-partner Stuart Rosenfeldt was sentenced this morning by Judge Cooke to a 33-month prison term on conspiracy conviction.

Irfan Khan Strikes Back

You remember Irfan Khan, the supposedly big terrorism case that was dismissed a few summers ago. Well, Khan is seeking revenge. From the AP:

Irfan Khan, a naturalized U.S. citizen from Pakistan with a wife and two children, worked hard to realize the American dream after arriving in this country in 1994. He held jobs in South Florida as a taxi driver, service technician and operated a limousine company. He was an avid cricket player. Then he stepped up to a California computer industry job in 2011 that promised a good living.

A short time later, Khan was indicted along with his father and brother - both Muslim imams at South Florida mosques - with conspiring to provide up to $50,000 to the Pakistani Taliban terror group. Khan spent 319 days in solitary confinement before federal prosecutors abruptly dropped all charges in June 2012.

"It was very, very hard," Khan said of his days spent praying and reading in that lonely cell.

Later, a federal judge ordered the acquittal of Khan's brother for lack of evidence, although their elderly father, Hafiz Khan, was convicted at trial and sentenced to 25 years behind bars. He's serving that time at a federal prison in North Carolina.

Now, Irfan Khan is suing the U.S. government for malicious prosecution, accusing authorities of essentially manufacturing a non-existent case against him. He is seeking potentially tens of millions of dollars in damages. A Miami federal judge refused the Justice Department's attempt to get the case dismissed, and it's headed for a June 2015 trial date.

I simply look at this as another opportunity to post one of my favorite clips:

Poll on Judge Fuller

The Daily Report is running a poll on what should happen to Judge Fuller.  Here's the poll, and here's the latest from Alyson Palmer of the DR on what's going on:

The Associated Press reported that it obtained a recording of the 911 call made by the woman, identifying herself as Kelli Fuller. According to the AP, the woman said she needed paramedics, saying, "He's beating on me. Please help me."
Fuller agreed to spend up to 24 weeks in a domestic violence intervention program and undergo an alcohol and substance abuse assessment to resolve the resulting misdemeanor battery case against him. His criminal defense lawyer has said that Fuller made no admission of guilt and that if Fuller completes the program, the case against him will be dismissed and his arrest record expunged.
Fuller said in a statement issued then that he regretted the incident, calling it embarrassing. He said he agreed to pre-trial diversion "after consulting with my family, and deciding that it was in everyone's best interests to put this incident behind us. While I regret that my decision means that the full and complete facts regarding this incident will likely not come out, I have no doubt that it is what is best for all involved."
Meanwhile, the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit has initiated an investigation into the matter. Although only Congress can remove a judge from office through the rarely-used power of impeachment, the federal courts by statute have some power to discipline their own judges.
Each federal appeals court's Judicial Council, made up of appellate and district court judges, can impose a range of punishments that include censure and asking a judge to retire voluntarily. If a Judicial Council concludes that a judge may have engaged in conduct that might constitute grounds for impeachment, the council must refer the matter to the national Judicial Conference, which in turn can send the matter to the U.S. House of Representatives for possible impeachment proceedings.

“Miami is replete with people who utilize illegal funds and live a luxurious, unbelievable lifestyle.”

That was Judge Lenard, sentencing Alvaro Lopez Tardon --convicted of spending in Miami, drug proceeds earned in Spain -- to 150 years in federal prison.  From the Miami Herald:

A federal judge put a uniquely Miami spin on the $20 million shopping spree of convicted money launderer Álvaro López Tardón before sending the accused Spanish drug kingpin to prison for 150 years on Monday.
“I call it funny money, and we have a plethora of funny money here,” U.S. District Judge Joan Lenard declared, as she described López Tardón's use of cocaine proceeds from Spain to purchase exotic cars and waterfront condos. “Miami is replete with people who utilize illegal funds and live a luxurious, unbelievable lifestyle.”
Before Monday's final sentencing, Lenard had conducted a series of hearings in which she spoke about shadowy characters like López Tardón who hang out in sunny places like South Florida. During those hearings, a federal prosecutor and defense attorneys debated the relative harm that the 39-year-old Spaniard actually did to the community by blowing drug money made in Spain on high-priced cars, condos, jewelry and watches in Miami.
In June, López Tardón was found guilty of a single conspiracy charge that carried up to 20 years in prison and guilty of 13 money-laundering charges that carried up to 10 years each. Under sentencing guidelines, the judge had the authority to craft a prison term that effectively added up to life in prison for the Spaniard.

Meantime, Judge Altonaga sentenced a pimp to 29 years in prison:

A Miami federal judge did not believe Damion St. Patrick Baston told the truth when he took the witness stand in his sex-trafficking trial this summer. She also did not detect any sense of guilt or remorse after the jury convicted him.
At his sentencing hearing on Monday, U.S. District Judge Cecilia Altonaga said Baston has a “deviant” and “delusional” personality with a “warped sense of reality.”
Despite her low opinion of the 37-year-old Jamaican, the judge refused to give him a maximum life sentence, instead sending Baston to prison for 27 years. The judge said that, although the trial evidence proved Baston repeatedly victimized young women in the sex trade from Australia to Dubai to Miami, he didn’t kill anyone and, therefore, a “sentence of life would not provide just punishment.”

What do you all think about these very long sentences after trial?  What would they have gotten had they pleaded guilty?

Meantime, down the street, there is a big push to get a new civil courthouse.  It's obviously needed.  Judge Soto looks great in the ad, while the courthouse looks just awful:

RIP Mike Beck

Judge Ed Davis' longtime courtroom deputy and then Northern Division Manager Michael Beck unexpectedly passed away over the weekend.  Mike was a great guy and really funny once you got to know him. 


He knew more about the clerk's office and how things ran than anyone I knew. 


Most people will remember his booming voice -- he would introduce court for Judge Davis every morning with the traditional OYEZ, OYEZ, OYEZ call.  It was really impressive how he did it.  So the judges started using him for en banc hearings and the like. 


Judge Davis' tight-knit federal family has had a rough go of it the last couple of years.  Mike was a big part of that family.  He will be missed.


If you have a good Mike Beck story, please remember him in the comments.

“This is really a story about redemption.”

A great quote on Rosh Hashanah from Bill Barzee about his client, lobbyist Richard Canadia.  Judge Cooke sentenced him to probation and four months of home confinement. From the (newly designed) Herald:

Cooke said she recognized his remorse and the significance of his help. She also recognized he was a vulnerable man who had gone through financial difficulty, a divorce and the death of his parents when he decided to participate in an FBI-orchestrated grant scheme to rip off the federal government.
Cooke, known for her folksy expressions, said the “wheels fell off the bus” in describing Candia’s dire situation. Before that, “I don’t think this was anything you were capable of or thought you would do,” the judge told him.

Pizzi surely hasn't kept his head down since his acquittal.  Here are his comments after the sentencing:

After Thursday’s sentencing, Pizzi called Candia’s deal an “outrage.”

“After three years and millions of tax dollars spent, lying lobbyist Michael Kesti is doing talk shows and lying lobbyist Richard Candia is home watching footballs games,” Pizzi said. “These are two lobbyists who lied to and wanted to corrupt every city in the state in order to make money. One got a big paycheck by conning the government and the other, Candia, a free pass. This is how this operation ended.”

"Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam…. I think I’ll recognize when the time comes that I can’t any longer. But now I can."

That's Notorious RGB, otherwise known as Justice Ginsburg, in this Elle article. It's an awesome article and worth the read.  Here's one exchange:

It’s part of Washington lore that you and Justice Scalia are good friends and opera buddies. I have to ask, when he says that the Constitution doesn’t necessarily prohibit discrimination against women, isn’t it hard not to take it personally?

Justice Scalia and I served together on the DC Circuit. So his votes are not surprising to me. What I like about him is that he’s very funny and very smart.

[She points to a photograph.] That one shows the two of us in 1994 when we were on a delegation to India. So there we are on a very elegant elephant. My feminist friends say, “Why are you riding on the back of the elephant?” and I said, “Because of the distribution of weight, we needed to have Scalia in the front.”

Does it make a difference having three women justices?

Yes, an enormous difference….When Sandra left, I was all alone…. Now Kagan is on my left, and Sotomayor is on my right. So we look like we’re really part of the court and we’re here to stay. Also, both of them are very active in oral arguments. They’re not shrinking violets. It’s very good for the schoolchildren who parade in and out of the court to see.

In other news, a Miami state judge supposedly told a store clerk "to go and f--- yourself."

Michael Boggs' nomination to district bench in Georgia appears dead

The AP has the story here:

President Barack Obama's controversial selection of Michael Boggs to become a federal judge in Georgia lacks enough votes to survive and the nomination should be withdrawn, the chairman of the Senate Judiciary Committee said Monday in what amounts to a rare rebuff of the president from his own party.

The fate of Boggs's nomination has been in doubt for months, after Senate Majority Leader Harry Reid, D-Nev., and other Democrats expressed opposition to him because of positions he has taken on abortion, same-sex marriage and the Confederate flag.

Monday's remarks by the Judiciary chairman, Sen. Patrick Leahy, D-Vt., signaled what could become an embarrassment for Obama. It is unusual for a president's nominees to be rejected by members of his own party.

Several hours earlier, White House spokesman Josh Earnest said Obama did not want Boggs to withdraw his nomination. Earnest gave a modest endorsement of Boggs, saying Obama believes that "Judge Boggs has the necessary qualifications to serve in this role."

After Leahy's statement, White House spokesman Eric Schultz stood by Earnest's remarks.

Leahy's comments came six weeks before congressional elections in which strong support from women and black voters would enhance Democrats' chances of retaining Senate control and limiting expected losses in the House.

Obama last year nominated Boggs, a state appeals court judge, to become a federal district judge in Georgia. Boggs was recommended by that state's two Republican senators as part of a deal to fill seven judicial vacancies there.

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Boggs served as a Georgia state legislator a decade ago. During that time, he backed measures to post information online about doctors who perform abortions - which opponents said could jeopardize those physicians - and to keep the Confederate battle emblem on the Georgia flag. He also supported a proposed amendment to the state constitution barring same-sex marriages.

At a Senate Judiciary Committee hearing in May, Boggs told the senators that he now believes his vote on abortion doctors was wrong and he's glad the Confederate emblem was later removed from the state flag. He said his views on same-sex marriage "may or may not have changed."

Nonetheless, he was criticized by several Democrats, with some expressing skepticism that he could make impartial decisions.

Abortion-rights groups hailed word that Boggs' nomination was in trouble.

"Everybody wishes this guy would do the right thing and withdraw," said Ilyse Hogue, president of NARAL Pro-Choice America. "He's got no pathway forward, and he's taking up time and energy that everybody wishes could be spent on other things."