"Ad hominem attacks, irrespective of how effective they may be, cannot obfuscate the requirement that the government must prove its case beyond a reasonable doubt. While this Court, and even John Adams, might have concurred with the government’s characterization of McLean, in order to obtain a conviction the government must present evidence as to each element of an offense—and that is precisely what it failed to do here."

That was visiting district judge Harvey Schlesinger for a unanimous 11th Circuit, affirming the judgment of acquittal for David McLean in this interesting opinion.

R.I.P. Yogi

He was an original. How many originals are left?







What's going on in the District?  Any trials or interesting hearings?  Email me!  You too judges!

In the meantime, Trump or Colbert?



Here is SCOTUSBlog's first Petitions to Watch on the Long Conference.

And the feds brought this child porn case, with a guy who was encrypting his data, via Paula McMahon.

Tuesday News & Notes

1. Is Justice Alito the best or worst Justice on the Court? The best... Just ask him. Here's what he said about the 4th Amendment:

Alito moved onto privacy and the 4th Amendment. “Another change in the past decade has been constitutional protection for privacy. During the past ten years, the Court has applied the 4th amendment’s prohibition against unreasonable search and seizure to modern technology. I think this is going to be a very big issue moving forward. The 4th amendment was adopted with traditional property law in mind. What was once new technology (wiretap and eavesdropping), it was difficult to apply old property based standards to the new technology. The Court adopted a new test, and looked to reasonable expectation of privacy on the part of the individuals. That standard worked for a while, but with the development of new technology, it has become very difficult
The first case was “United States v. Jones, which involved placing a GPS tracking device on someone’s car. How do you apply the 4th amendment standard to that situation? What government has done is to take the precedents developed during the pre-digital error and apply them mechanically to the new issues. It has not worked in the Jones case. The Court decided the case on a ground I did not agree with. The Court looked back to common law trespass law–there was a trespass for law enforcement to place electronic device on a car. The placement of the device did not harm–that missed what was really the important issue. That missed the important issue which was the surveillance of the device on the car.
The “second case was Riley v. California–whether police can search the contents of cell phone. In the pre-digital era, police could search the person of someone who is arrested, and if that person has stack of letters, that could be searched. But what do you with a smartphone at the time of arrest. We held that content could not be taken without a warrant or probable cause.”
Alito closed with a call for Congress to address these issues, not the Court. “These are just some of the issues that may come up. The problem is that in making determinations we are put in a position of determining what is a reasonable expectation of privacy. We are very ill-positioned to make these determinations. We are older than the average person. This may come up as a surprise–We are not up on all the latest technology. If privacy is to be protected in the future, that balances the interests of law enforcement and the interest of privacy, legislatures should take the lead. They are in a better position that the courts.”

2. The Detroit Free Press says that the Presidential candidates should have a real debate about the Court. The conclusion:

And in fact, the same impulses that have driven his contempt for discrimination against gays shape his opposition to race-conscious policies like affirmative action. Kennedy doesn’t care whether the government is treating people different in the name of expanding their liberty or confining it; his point is that the government ought not be in the business of treating people differently.

Roberts, too, is a conservative rock, even when he’s voting in favor of preserving the Affordable Care Act. In both rulings, he was exercising deference to Congress’ lawmaking abilities, and the court’s responsibility to carve wide berth — and avoid nitpicking defeatism — in interpreting what the popularly elected branches want or intend to do.

Sounds pretty conservative to me. I doubt Roberts, or Kennedy for that matter, is rushing off to join even the most conservative wings of the Democratic party.

I know the Republican candidates were poking at Roberts only by way of jabbing at Obama; this is primary season, and they know there are votes to be mined in the opposition to just about anything the current president has done.

And I know that, in office, the brash calculations of a debate-stage performance almost always give way to more considered, thoughtful decision-making. Especially when it comes to the high court.

3. Joseph Zada is trying to get an appellate bond from Judge Marra, via the PB Post.

4. The 11th Circuit has rejected a vagueness challenge to the career offender guidelines based on Johnson, via SL&P.

Good luck to those checking on the Florida Bar results

They are in this morning. Good luck to everyone. (And congrats to our own Lauren Doyle for passing!)

The DBR has this local story about a fight between a blogger who used a copyrighted photograph and claimed fair use. Score one for the blogger:

A federal appellate court has ended one of many battles in a widespread landlord-tenant war by upholding the ex-tenant's right to use and blog about an unflattering photo of the ex-landlord, a minority owner of the Miami Heat.

The ruling Thursday by the U.S. Court of Appeals for the Eleventh Circuit upholds a trial court decision for Irina Chevaldina, a former tenant of the California Club Mall in Miami. Ex-landlord Raanan Katz, a billionaire commercial real estate developer, owns the mall and about two dozen others through his company RK Associates.

11th Circuit says Judge Fuller beat his wife and lied about it

Here's the letter to Congress. The AP covered the story:

Judicial investigators told Congress this week that a former federal judge — arrested last year on a domestic violence charge— had demonstrated "reprehensible conduct" and there was evidence that he abused his wife several times and made false statements to the committee reviewing his behavior.

The Judicial Conference of the United States, in a report to Congress this week, said former U.S. District Judge Mark Fuller of Alabama brought disrepute to the federal judiciary and that his conduct might have warranted impeachment if he had not resigned this summer.

In a letter to the House Judiciary Committee, the Judicial Conference noted Fuller's resignation, but said the severity of Fuller's misconduct and its finding of perjury led it to turn the information over to Congress for whatever action lawmakers deem necessary.

"This certification may also serve as a public censure of Judge Fuller's reprehensible conduct, which has no doubt brought disrepute to the Judiciary and cannot constitute the 'good behavior' required of a federal judge," Judicial Conference Secretary James C. Duff wrote in a Sept. 11 letter to House Speaker John Boehner.

"Upon receiving their master’s degrees, certifications, and licenses, Plaintiff-Appellant student registered nurse anesthetists are legally able to put people to sleep. We have heard, though never ourselves experienced, that some legal opinions can do the same thing. We are hopeful that this one will not."

That was how Judge Rosenbaum started this opinion.  She also threw in this footnote: "But, then again, the writer is always the last to know."

Good stuff.

UPDATE: This morning Judge Rosenbaum gave us another entertaining introduction to an opinion:

Dorothy may have said it best when she said, “There is no place like home.” Though we are pretty sure that she was not talking about the Fourth Amendment, she may as well have been. Under the Fourth Amendment, the home is a sacrosanct place that enjoys special protection from government intrusion. The government may not enter a person’s home to effect an arrest without a warrant or probable cause plus either consent or exigent circumstances. For this reason, we hold today that, in the absence of exigent circumstances,2 the government may not conduct the equivalent of a Terry3 stop inside a person’s home. But because the law on this point was not clearly established in this Circuit before our decision today, we affirm the district court’s entry of summary judgment on qualified- immunity grounds to Defendant-Appellee Deputy Kevin Pederson, who reached into Plaintiff-Appellant Elvan Moore’s home to arrest and handcuff him when, in the course of what Pederson described as a Terry stop, Moore declined to identify himself in response to Pederson’s questioning. We also affirm the district court’s dismissal of Moore’s state-law claim for intentional infliction of emotional distress.

Meantime, Colbert interviewed Justice Breyer:

“This case was stunningly weak.”

That was Federal Public Defender Michael Caruso about the case against his client Irfan Khan, which was dismissed before trial.  The New Yorker covers the entire case here in a very interesting read, called "The Imam's Curse."  The article starts with a description of how the feds really pumped up this dud of a case:

At dawn on May 14, 2011, more than two dozen federal agents and local police officers converged on a working-class neighborhood near the Miami airport and surrounded a small green-and-white stucco building—Masjid Miami, one of the city’s oldest mosques. Police sealed off a two-block radius, and F.B.I. agents, some armed with AR-15 rifles, assembled outside the door.

Inside, eight men were kneeling for the first prayer of the day. When agents called for them to open up, one of the worshippers, a former police officer, went out and asked them to wait until the prayer was finished. The agents complied, and then they arrested the mosque’s imam, Hafiz Khan, an émigré from a mountainous corner of Pakistan near the Afghan border. Khan was in his late seventies, an albino with thick glasses and a long colorless rush of beard. He had moved to America, with members of his family, in 1994, at the encouragement of a younger brother in Alabama. They became citizens, but Khan spoke no English and rarely left the mosque or a one-room apartment across the street, which he shared with his wife, Fatima. He was known to some of the locals as el viejito barbón—the old bearded man. Kids referred to him as the Santa Claus imam.

While the F.B.I. was arresting Khan, another team of federal agents and police assembled forty miles away, in the city of Margate. They surrounded Jamaat Al-Mu’mineen, a large mosque presided over by Hafiz’s youngest son, Izhar Khan. Izhar, who was twenty-four, was about to lead the morning prayer when agents in F.B.I. windbreakers confronted him in the parking lot. Izhar had moved to Florida when he was eight years old, and he spoke barely accented English. He wore a long dark beard, a black cotton robe, and a skullcap. The agents examined the computers in his office, and when they searched his cell phone they noticed that many of his text messages were about the Miami Heat and other teams.

Meanwhile, a third maneuver in the F.B.I.’s operation against the Khans was unfolding in Los Angeles, where it was 3 A.M. and Izhar’s brother Irfan, a thirty-seven-year-old software programmer, was asleep in his room at the Homestead Studio Suites, an inexpensive business hotel in El Segundo. Married, with two kids, Irfan was a sitcom buff who made hammy jokes about his waistline. (“This won’t be good for my diet!”) He lived in Miami and worked for American Unit, an I.T. company. For the past three months, he had been commuting every two weeks to an assignment in El Segundo. He was awakened by a phone call from the police, advising him to go to the door. He was handcuffed and led to a waiting car, past bomb-sniffing dogs and helmeted men in camouflage.

After the arrests, federal authorities announced that, in all, six people in Florida and abroad had been charged with funnelling tens of thousands of dollars into a conspiracy to “murder, kidnap, or maim persons overseas,” orchestrated by the Pakistani Taliban, an ally of Al Qaeda. The group was known for having trained Faisal Shahzad, a Pakistani-American who, in May, 2010, tried to set off a car bomb in Times Square. In 2012, Pakistani Taliban gunmen boarded a bus in northwest Pakistan and shot Malala Yousafzai, a fifteen-year-old schoolgirl who had called for the education of women.

The F.B.I. had been secretly tracking the Khans for at least a year, monitoring their finances and recording thousands of hours of conversation, in person and on the phone. Two other members of the family were also indicted—a daughter and a seventeen-year-old grandson, who live in Pakistan—along with a Pakistani shopkeeper, who had served as a middleman. In the indictment, they were accused of conspiring to buy guns, shelter the Taliban, and send students “to learn to kill Americans in Afghanistan.” The indictment described phone calls from Miami, in which the father “called for an attack on the Pakistani Assembly” and “called for the death of Pakistan’s President.” The U.S. Attorney Wifredo A. Ferrer told the Sun Sentinel that a list of cash transfers totalling fifty thousand dollars was “just the tip of the iceberg,” and declared, “We will be able to prove that there is more than fifty thousand dollars that went to the Taliban.” Each of the accused faced between forty-five and sixty years in prison.

While the feds do have some resources to fight cases like this, the State Public Defenders do not.  John Oliver does this amazing piece on how state PDs need more funding:

Federal courts are open today...

...while public schools and state court are closed.  I always thought that the feds should line up with the state on this issue and close because it's too hard on everyone with kids home and so on.

But if you are working today, check out the four on the short list for federal judge in the Middle District.

Or this NRP article on an NACDL report on federal indigent defense:

A tough new report has concluded that the federal government's system for defending poor people needs to change. The nearly two-year study by the National Association of Criminal Defense Lawyers said judges who are supposed to be neutral arbiters too often put their fingers on the scales.
The report said defense lawyers for the poor who work in the federal court system need more resources to do their jobs. That means money, not just for themselves, but to pay for experts and investigators.
"Having good, fully resourced defense counsel with access to ancillary services is an absolute must in a society that is arresting 14 million people a year," said Norman Reimer, executive director of the NACDL.
In an adversary system, lawyers for poor defendants say, they need to operate on equal footing with prosecutors. But the study, the first of its kind in more than 20 years, found the source of most concern rests with judges who exercise too much control over the process.
Bonnie Hoffman, a deputy public defender in Virginia, led the task force.
"There's some significant ways we feel the federal system is not measuring up — most importantly, in the area of independence," Hoffman said.
That's because judges are in charge. They have a role in selecting the defense lawyers for the poor clients who appear in court. They act as umpires during a plea hearing or a trial. And then those same judges approve or reject the defense lawyers' fee requests.
"It's a shame to think that somebody agrees to do this work, they do the work that they're asked to do ... to be a zealous advocate for somebody who's accused of a crime," Hoffman said, "and then when they finish that somebody can come back and say, 'I know you did good work ... but we don't feel like we should pay you for all the work that you did.' "

H/T: AB

Or, watch this for your moment of zen:

Thursday News & Notes

1.  Tennis star James Blake not spared awful treatment by the police.  The police have apologized:

The New York Police Department commissioner apologized on Thursday for the mistaken arrest of James Blake, a retired top-10 professional tennis player, who said he was slammed to the ground outside his hotel in Midtown Manhattan.

The commissioner, William J. Bratton, said he wanted “to extend a personal apology’’ to Mr. Blake.

The officer who detained Mr. Blake, who is biracial, has been placed on desk duty. Mr. Bratton expressed concern about “the inappropriateness of the amount of force that was used during the arrest.”

An initial review of video evidence of the arrest, Mr. Bratton said, led him to believe that it may not have been appropriate.

Mr. Blake said he was slammed to the ground by a police officer outside his hotel on Wednesday and detained for 15 minutes after being mistaken for a suspect in an investigation of possible credit card fraud.

2.  DOJ has a sort-of new policy saying they will prosecute more individuals for white-collar fraud and that companies who want to avoid prosecution must snitch on their own employees.  Here's the NY Times story:

Stung by years of criticism that it has coddled Wall Street criminals, the Justice Department issued new policies on Wednesday that prioritize the prosecution of individual employees — not just their companies — and put pressure on corporations to turn over evidence against their executives.

The new rules, issued in a memo to federal prosecutors nationwide, are the first major policy announcement by Attorney General Loretta E. Lynch since she took office in April. The memo is a tacit acknowledgment of criticism that despite securing record fines from major corporations, the Justice Department under President Obama has punished few executives involved in the housing crisis, the financial meltdown and corporate scandals.

“Corporations can only commit crimes through flesh-and-blood people,” Sally Q. Yates, the deputy attorney general and the author of the memo, said in an interview on Wednesday. “It’s only fair that the people who are responsible for committing those crimes be held accountable. The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.”

 3.  Football season is here!  Will the Fins finally make the playoffs? 

4.  The Hispanic National Bar Association will be having its 4th annual Anti-Human Trafficking Conference at St. Thomas University School of Law on Friday 9/18 at 9am.  RSVO to Elba Lumbi at elumbi@immigrationmiami.com

Ed Carnes concurs with Ed Carnes

This morning Chief Judge Carnes issued this opinion.  He also concurred with his own majority opinion.

His majority opinion starts this way (with a reference to Downton Abbey: Season 3, Episode 6, see *):

It may be, as the Downton Dowager bemoaned, that “[l]ie is so unmusical a word,”* but it strikes the right note for some of the statements that Dr. Patricia Lynn Hough made in her tax returns. So does 26 U.S.C. § 7206(1), which provides a penalty of imprisonment for a person who willfully files a return “which [she] does not believe to be true and correct as to every material matter.” That is one of the statutes that Hough was convicted of violating. The other is 18 U.S.C. § 371, which prohibits conspiring to defraud an agency of the United States, including the IRS. This is her appeal of those convictions and her sentence.

And below is the opening salvo from his concurrence regarding what a prosecutor can ask character witnesses.  There is a long line of cases in the 11th Circuit holding that a prosecutor cannot assume guilt in asking a character witness whether that would change the witness' opinion of the defendant.  The majority found that violation harmless in this case, but Carnes decided to concur to express his displeasure with this line of cases:

 Not surprisingly, as the author of the Court’s opinion I concur in all of it. I write separately to offer my view about our decisions in Guzman and Candelaria-Gonzalez insofar as they hold that a prosecutor cannot cross-examine the defense’s opinion or reputation character witnesses by asking whether their testimony would change if the defendant had committed the crimes with which she is charged. See United States v. Guzman, 167 F.3d 1350, 1351–52 (11th Cir. 1999); United States v. Candelaria-Gonzalez, 547 F.2d 291, 293–95 (5th Cir. 1977). We are bound to follow prior panel precedent even if we disagree with it, but we are not bound to remain silent about whether it is wrong. And the central holding of Guzman and Candelaria-Gonzalez is wrong.

Candelaria-Gonzalez first announced the erroneous holding in a case involving the cross-examination of defense witnesses who gave testimony about the defendant’s good reputation in the community, 547 F.2d at 293–95, and Guzman extended the holding to cross-examination of witnesses who gave opinion testimony about the defendant’s good character, 167 F.3d at 1351–52. The reason given for the holding was that “[t]hese hypothetical questions [strike] at the very heart of the presumption of innocence which is fundamental to Anglo-Saxon concepts of fair trial.” Candelaria-Gonzalez, 547 F.2d at 294; see Guzman, 167 F.3d at 1352. No they don’t.

Judge Carnes ends his concurrence with a strong defense on cross-examination:

Regardless of how the witness answers the question, it is a proper one on cross-examination because it helps the jury get at the truth. Cross-examination, as Professor Wigmore stated, is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 John Henry Wigmore, Evidence in Trials at Common Law § 1367, at 32 (Chadbourn rev. 1974). That engine for the discovery of truth should be allowed to run at full speed and not be choked to a halt by misunderstandings about conditional questions and answers or by facile references to “Anglo-Saxon concepts of fair trial.” Candelaria-Gonzalez, 547 F.2d at 294. As Thomas Paine observed, “such is the irresistible nature of truth, that all it asks, and all it wants, is the liberty of appearing.” Thomas Paine, Rights of Man 151 (Everyman’s Library ed. 1958) (1791). We ought to do what we can to give truth the liberty of appearing in a trial.

Ellisa Martinez's case reheard

The 11th Circuit had rehearing on Ellisa Martinez's case in light of the Supreme Court's decision in Elonis.  And this is what happened:

This case is before this Court for further consideration in light of Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015). We previously affirmed Ellisa Martinez’s conviction under 18 U.S.C. § 875(c) for knowingly transmitting a threatening communication. United States v. Martinez, 736 F.3d 981 (11th Cir. 2013). The Supreme Court vacated the opinion and remanded the case to us for consideration in light of Elonis. See Martinez v. United States, 135 S. Ct. 2798 (2015).
In Elonis, the Supreme Court reversed and remanded the defendant’s conviction under § 875(c), holding a jury instruction providing “that the Government need prove only that a reasonable person would regard [the defendant’s] communications as threats” was error. 135 S. Ct. at 2012. The Court determined that “[h]aving liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks”—is insufficient for a conviction under § 875(c). Id. at 2011. The Court cited “the basic principle that wrongdoing must be conscious to be criminal,” id. at 2009, and held that “what [the defendant] thinks does matter,” id. at 2011. While the Supreme Court declined to answer the question of the exact mental state required by a defendant, it held negligence is not enough to support a conviction under § 875(c). Id. at 2013.
...

Based on the Supreme Court’s holding in Elonis, Martinez’s indictment is insufficient as it fails to allege an essential element of § 875(c). An indictment must set forth the essential elements of the offense. United States v. Fern, 155 F.3d 1318, 1324-25 (11th Cir. 1998). This rule serves the purposes of (1) informing the defendant of the nature and cause of the accusation, as required by the Sixth Amendment; and (2) ensuring a grand jury found probable cause to support all the necessary elements of the crime, as required by the Fifth Amendment. Id. at 1325. The indictment fails to allege Martinez’s mens rea or facts from which her intent can be inferred, with regard to the threatening nature of her e-mail. It alleges only that a reasonable person would regard Martinez’s communication as a threat. Martinez’s indictment does not meet the Fifth Amendment requirement that the grand jury find probable cause for each of the elements of a violation of § 875(c).
In light of the Supreme Court’s holding in Elonis, our holdings in Martinez and Alaboud are overruled. Martinez’s conviction and sentence are vacated, and we remand this case to the district court with instructions to dismiss Martinez’s indictment without prejudice.
VACATED AND REMANDED.

Former AUSA Michael Garofola (and Bachelorette contestant!) back in the news

S.F. Lawyers beat me to it. 

Earlier this year, Garofola, a former Davis Polk & Wardwell associate and federal prosecutor, took a break from his job as general counsel for Trans Pacific Polymers and Gulf Energy and Chemical Company to appear on "Bachelor in Paradise," a spinoff series of the reality TV hit "The Bachelorette." In 2013, he took an even longer break from the U.S. attorney’s office in Miami to appear on a season of the original show featuring fashion designer Desiree Hartsock.

Garofola was eliminated from "The Bachelorette" in the seventh episode, when Hartsock passed him over for other suitors. His run on "Paradise" ended just two weeks ago, when he was edged out by other contestants vying for the attentions of Tenley Molzahn. ("She's just not that into [I.Q.],” Garofola tweeted to his nearly 16,000 followers.)

If Garofola is smarting from the rejection, he doesn’t let on. “I’m proud of all of my decisions,” he said in an interview after the show. “They’ve all been net positive, and I really wouldn’t change a thing.” And he has no patience for those who would question the choice to flaunt the search for love.
Lawyers enjoy reality shows as much as everyone else, Garofola said. But among reality TV’s critics, they’re “the most hypercritical and judgmental group.”

"I don’t fit that mold,” said Garofola, insisting that he’s always embraced risk. His biggest fear, he said, is having regrets.

PB Post live tweeting federal trial in WPB (UPDATED)

Joe Zada is waiting for a verdict in West Palm Beach. Big fraud case with lots of shenanigans.  The Palm Beach Post live tweeted closing arguments here.  And here's a nice summary from the online paper:

Joseph Zada didn’t show the best judgment when he used other people’s money to buy jewelry, sports cars and palatial homes in Wellington and Michigan, where he threw lavish parties featuring acrobats swinging from trapezes and performing stunts rivaling Cirque du Soleil, his attorney told a federal jury on Tuesday.
In fact, attorney Richard Lubin said, it was downright dumb.

Joseph Zada (right) heads into federal court with his attorney Richard Lubin on July 27, 2015, as jury selection began in his fraud trial. Claiming he was the illegitimate son of an oil-rich oil sheik, Zada claimed he would inherit $600 million as a result of the unidentified Saudia Arabian’s death, SEC lawyers claimed in a complaint they used to get a $121.6 million judgment against Zada last year. (Lannis Waters / The Palm Beach Post)

But, he told jurors on the final day of Zada’s month-long fraud trial, the former Wellington high-flier fully intended to repay those who gave him as much as $55 million. Once he received a more than $250 million inheritance from an overseas businessman, everyone would be made whole, he said.
“He put the cart before the horse,” Lubin said of Zada’s decision to take millions from people before he had the inheritance check in hand.
“There’s no question Joe Zada spent the money before he had it,” Lubin said. “He was so convinced he was going to get this huge amount of money that he spent it before he had it. … It’s not a smart thing to do, but it’s not a crime."

Former NHL player Sergei Fedorov leaves the Federal Courthouse after testifying Aug. 20, 2015, in the fraud trial of Joseph Zada, a former Wellington big shot who is accused of bilking dozens of investors out of millions. Fedorov, who played for the Detroit Red Wings, got a $60 million judgment against Zada for squandering $40 million he gave his onetime friend to invest. (Lannis Waters / The Palm Beach Post)

Federal prosecutors, who are asking jurors to convict the 57-year-old of 15 counts of mail fraud and three counts of bank fraud when they begin deliberations today, scoffed at the notion that Zada made an innocent mistake.
Since the late 1990s, Zada has been duping people into believing that he was a wildly successful businessman who had befriended a variety of preposterously rich men, who left him their fortunes when they died, federal prosecutors said.
First, he claimed he got a windfall from a man who died from AIDS, said Assistant U.S. Attorney Adrienne Rabinowitz. Then, it was a enormous check from his oil-rich Lebanese father, who felt guilty about abandoning his family after they moved to the U.S. Later, he told people he was inheriting money from a man named Wolfgang, a member of a secret committee in London that had access to global investment opportunities. In another twist, he said he was waiting for a $1.5 billion check from the estate of a Saudi oil sheik.
Rabinowitz blasted claims by Lubin that bankers, lawyers and accountants had verified that foreign banks were processing a multi-million-dollar inheritance for Zada.
“The evidence is overwhelming that the defendant isn’t getting an inheritance,” she said. “They’re lies.”

UPDATE -- Zada was found guilty this morning and remanded into custody.

SCOTUS: Bond for ex-Governor

I've never seen the Supreme Court do this before, but it granted bond for former Virginia Governor Robert McDonnell yesterday in this order.  From the Richmond Times-Disptach:

In a surprise to some observers, the U.S. Supreme Court on Monday allowed former Gov. Bob McDonnell to remain free while the justices decide whether to take up his appeal.
In a one-paragraph order, the high court told the 4th U.S. Circuit Court of Appeals to hold off on making its July 10 ruling upholding McDonnell’s 11 corruption convictions final, permitting McDonnell to remain on bond.
Should the justices not take the case, the stay ordered on Monday will end automatically. If the court takes the case, the stay will continue, the court ordered.
“Wow,” said Randall Eliason, former chief of the Public Corruption/Government Fraud Section at the U.S. Attorney’s Office in Washington. “It suggests there is some level of interest at the Supreme Court in reviewing the case, even though not a single appellate judge in the 4th Circuit agreed with his arguments.”
Henry Asbill, one of McDonnell’s lawyers, said, “We’re very grateful for this order and we’re gratified that the justices recognize that this case raises substantial and important legal questions and we look forward to a full merits briefing.”

Lower courts should take a cue from the High Court that appellate bonds are okay!

SCOTUS: "Long Conference" on 9/28

The NY Times has an interesting piece this morning on the "long conference" where all of the summer petitions will be considered.  The odds of a grant from the long conference are particularly low.  Can't the Court meet a few times over the summer to consider the filed cert petitions?  Would that be such a burden in addition to the 70-75 cases that they hear a year?

Four weeks from now, on Sept. 28, the Supreme Court justices will gather in private for an annual ritual called the “long conference.” They will consider the roughly 2,000 petitions to hear appeals that have piled up over the summer. And they will reject almost every one.

“The summer list is where petitions go to die,” said Gregory G. Garre, a solicitor general in the George W. Bush administration who is now at Latham & Watkins.

The odds of persuading the Supreme Court to hear a case are always long. At the conferences held on many Fridays during the term, which lasts from October to June, the justices consider perhaps 200 petitions at a time and grant about 1.1 percent of them. At the long conference, the rate is roughly half of that, around 0.6 percent.

That difference is significant. “For the majority of petitioners, the most important moment is trying to get in the door,” said Jeffrey L. Fisher, a law professor at Stanford who argues frequently before the court. “Once you’re in, the statistics say, you have a two-thirds chance of winning. So the difference between a grant and a deny is truly the difference for a handful of cases on the summer list between winning and losing.”

Lawyers and scholars have various theories about why the long conference is so inhospitable. One is that the justices, who decide about 70 cases a year, do not want to grant too many petitions right away for fear of having to turn down better ones later on.

“It’s like the beginning of a long buffet,” Professor Fisher said. “You don’t want to fill your plate with too much stuff, lest you not have room for some delicious items at the end of the line.”

Meantime Liptak (the author of the article) and Orin Kerr are fighting about whether Justice Thomas here.  Here is the original NY Times piece that Kerr take on. Who has the better of the debate?  Kerr seems to make valid points about the flimsy statistics cited by Liptak.

Flakka and butt implant deliveries from overseas to be delayed due to Erika

Your 8am death cone:



Paula McMahon covers this big Flakka importation case:

Two men pleaded guilty Thursday to importing more than 24 pounds of the main ingredient in the street drug flakka from China to Broward County.

Federal authorities arrested Michael J. Hernandez, 25, of Orlando, and Jonell Vega-Mercado, 21, of Clermont, in June when they tried to pick up packages from a shipping and mailbox store in Hollywood.
Michael J. Hernandez and Jonell Vega-Mercado

Homeland Security Investigations agents said the packages contained the key ingredient for making the synthetic stimulant, which often causes hallucinations and psychosis.

The packages were addressed to fake names and were intercepted while being shipped to commercial mailboxes in Weston and Hollywood, authorities said.

The men ordered large amounts of the drug to be shipped from labs in China and the conspiracy went on from January to early June, according to the plea agreement. The men paid cash for mailbox services and used fake identities when they picked up the shipments.

Both men pleaded guilty to one count of conspiring to import the drug ingredient at a hearing in federal court in West Palm Beach. The charge carries a maximum punishment of 20 years in federal prison and a $1 million fine.

And what's Friday news without Hurricanes, Flakka, and.... Butt Implants:

Peruvian woman who admitted she illegally smuggled a product into South Florida to perform an illegal "buttocks enhancement" procedure was sentenced to 10 months in federal prison on Thursday, court records show.

Teresa Nunez Orrego, 46, was arrested in May during an appointment with an undercover federal agent who posed as a client who wanted a "buttocks enhancement." The arrest was made at the Hallandale Beach apartment of Nunez's South Florida contact who scheduled her appointments.

Teresa Nunez Orrego, 46, was sentencd to 10 months in federal prison after admitting she traveled from Peru to Broward County with silicone, large hypodermic needles and syringes to perform an illegal cosmetic procedure, or "buttocks enhancement." (Handout, Broward Sheriff's Office)

Nunez had promised she would boost the woman's rear end with injections of a top-quality Swiss product for the bargain price of $1,000, according to court records.

Federal authorities said Nunez hid vials of silicone, with fake labels that claimed it was more expensive hyaluronic acid, in her luggage on a flight from Lima, Peru to Fort Lauderdale-Hollywood International Airport.

Also concealed in her luggage were large hypodermic needles, syringes and vials of lidocaine to help treat reduce the pain involved in the procedure, according to agents from the Food and Drug Administration and Immigration and Customs Enforcement.

“He tried to nail Ben to the wall."

That's Henry Bell discussing Robert Feitel in this Herald article about lawyers and money laundering by Michael Sallah.  More:

Robert Feitel, a veteran lawyer with a long history of prosecutions, charged into court as the Justice Department’s point man to take on a prominent Miami lawyer in a case that came to symbolize the rights of attorneys to accept fees from international drug traffickers.
Feitel accused lawyer Ben Kuehne of fabricating documents to cover up dollars for the Medellin Cartel. He accused him of orchestrating the payments through overseas wires. He even said Kuehne knew much of the money came from the sale of drugs.
Now, years after the case ended, Feitel is cast in a strikingly similar position as the man he once prosecuted.
The Miami Herald found that more than $100,000 in drug money belonging to criminal organizations was sent to Feitel’s law firm by South Florida undercover officers posing as money launderers to infiltrate drug groups.
The undercover police picked up the cash in New York and sent the money to Feitel — now a defense attorney who specializes in drug cases — at the behest of criminal organizations in a series of payments never questioned by the former prosecutor, records and interviews show.
Kuehne, whose case was ultimately dropped by the government in 2009, said he was surprised to learn about payments to the man who once prosecuted him.
“The question is: Why was he getting the money?” said Kuehne, a former member of the Florida Bar’s board of governors who represented Vice President Al Gore in the 2000 presidential recount. “Is he going to get the same knock on the door?”
Contacted by phone, Feitel said he was unaware of the money sent to his office in northwest Washington, where he works mostly as a solo practitioner, adding he was surprised by The Herald’s call. “We’re usually pretty careful” about accepting questionable fees, he said.

Oh... it's the usually we're pretty careful defense! Henry and others were having none of it:

Several defense lawyers from Miami said they were riled that the onetime senior prosecutor was never questioned by law enforcement agents about the money sent to his account — funds picked up off the streets of New York from drug suspects.

“In his role at the DOJ, he prosecuted Ben for the same thing;” Bell said.

In an earlier interview, Feitel said money sent from a U.S. bank like the one used by the task force is more difficult to screen than funds from overseas exchange houses. “How was I supposed to know” the money is tainted? said Feitel. “That would have been difficult.”

One former federal prosecutor said money wired to a law firm from someone who is not a client should have raised basic questions. “What did he think the money was for?” said Joseph DeMaria, a Miami attorney who once served on the DOJ’s Organized Crime and Racketeering Section. “He’s got to be saying to himself: ‘Why am I getting this money? Especially someone who was a former prosecutor who’s even more heightened on these kinds of issues. He spent his career putting people in jail for money laundering.”

Judge Williams rules that Mosely-Mayorga II will proceed

Well, the opening round of Don King Productions, Inc. v. Shane Mosely was, in Judge Williams's view, pretty much even, which means that the Mosely-promoted Grudge Match between Mosely and Ricardo Mayorga will proceed this Saturday night at The Forum in Inglewood, California as planned.

In a lengthy order denying Don King's promotional company's (DKP) motion for a preliminary injunction, Judge Williams found that sufficient evidence showed that Mayorga had entered into an agreement with DKP for it to exclusively promote Mayorga as a professional boxer. But she also concluded that DKP had failed to show a "substantial likelihood of success on the merits" about whether the agreement was still in effect and whether DKP had waived certain of its provisions. Plus, there was no irreparable harm that money couldn't remedy. So, Judge Williams concluded, the "extraordinary and drastic remedy" of stopping the fight simply wasn't called for.

Here's the order:

DKP v. SSM et al. -- Order Denying Pl.'s Mot. Prelim. Inj.

RIP Douglas Mincher, Clerk of 11th Circuit

The 11th Circuit posted these comments: http://1.usa.gov/1ESfW9J

And Aly Palmer at The Daily Report in Atlanta covers the sad story here:

A longtime metro Atlanta court administrator, Douglas Mincher, has died at the age of 57.

Mincher, who became clerk of court for the U.S. Court of Appeals for the Eleventh Circuit earlier this year, died on Sunday of an apparent heart attack, according to Circuit Executive James Gerstenlauer.

Mincher had been chief deputy clerk for the Northern District of Georgia from 2010 until being hired for the Eleventh Circuit job. He previously had worked for several years for the city of Atlanta, combining and administering its municipal and city courts.

Eleventh Circuit Chief Judge Ed Carnes said the news was a shock, noting that Mincher was a cyclist who exercised regularly to keep fit. "He would tell everybody who would listen that this job was his dream job," said Carnes, adding he had hoped that Mincher would be the clerk through the rest of his term as chief.

Hiring law clerks who have experience: A bad thing?

FIU law professor Howard Wasserman has an interesting post today at PrawfsBlawg about the "unfortunate trend," in his view, of judges' tending to hire law clerks who have some real-world experience, rather than straight out of law school. He notes that this trend seems to be increasing, particularly in the Southern District of Florida.

The internet is awesome

1.  Jeff Ashton (the Casey Anthony prosecutor who has 5 kids and preaches family values) is outed on Ashley Madison.  And then he gave a press conference to discuss.  No joke:

His ideal partner would “know what she wants” and would not be afraid to ask for it. A “big toy collection” would not be all that bad either, he wrote.
“You must be discrete, not looking to change my situation, just want to get excited again.”
He also boasted of his sexual prowess in his profile, the Orlando Post shared.
“I want someone that fantasizes about being brought to a climax by a lover with a skillful tongue and fingers as well as his member,” he added.

 2.  Jeb Bush does not have a black hand.  But this flier!

Trump saw red meat:

A campaign leaflet sent out by a pro-Bush super PAC that shows him with a black left hand, and his body apparently super-imposed on a picture of Cedar Rapids, Iowa.

“Jeb Bush has a Photoshopped photo for an ad which gives him a black left hand and much different looking body. Jeb just can’t get it right!” the real-estate mogul said of his rival for the 2016 Republican nomination, who he has frequently assailed recently on the campaign trail.
The leaflet’s copy, “Why Jeb?” ended up being co-opted by bemused Twitter users to ask, “Why, Jeb?” as to why his hand had become black. The original campaign leaflet was sent by the Right to Rise USA Super PAC to some 86,000 Iowans, as Bush seeks to raise his game amid lackluster polling in the first-in-the-nation caucuses state.

Oh and welcome back to school... and traffic!
 

Don King and "Sugar" Shane Mosley square off in the S.D. Fla.

Former pound-for-pound best fighter in the world “Sugar” Shane Mosely took to Twitter yesterday to discuss a lawsuit brought by Don King’s promotional company (DKP) against him, fellow boxer Ricardo “El Matador” Mayorga, and others seeking to put a halt to the upcoming “Grudge Match” between Mosely and Mayorga, currently scheduled for August 29. According to court documents, Mosley’s seeking to fight Mayorga in the Grudge Match would tortiously interfere with DKP’s exclusive contractual rights to promote its client Mayorga. A hearing on DKP’s motion for a TRO and preliminary injunction was held yesterday before Judge Williams.

Mosely displayed his promotional skills before the hearing:

Thoughts on the strength of DKP’s case?

Any predictions, Champ?

C’mon, Shane! This is the Southern District of Florida! And you have a great judge.

So how’d it go?

Fair enough. Staying silent is probably best until this all gets resolved.

Hope it works out for all involved. Stay tuned.

***

In other news, the Eleventh Circuit issued a few interesting decisions this week, reminding lower courts that they should essentially never vacate arbitral awards, and discussing the risks of providing your cell-phone number to entities that might text you advertisements. 

The US1 apocalypse starts Monday

Enjoy your last day today.

Okay, okay, you want some law.  There's been a lot of internet research and cites coming out of this District and the 11th Circuit recently.  Apparently, the 7th Circuit judges got into a tiff about it in Rowe v. Gibson (via Above The Law):

Jeffrey Allen Rowe, a prison inmate proceeding pro se, is suing various prison officials under 42 U.S.C. § 1983. Rowe accuses the officials of deliberate indifference to his serious medical need, specifically, need for proper treatment of his reflux esophagitis aka gastroesophageal reflux disease (GERD).

...

Judge Posner’s majority opinion, joined by Judge Ilana Diamond Rovner, cites such internet authorities as the NIH, the Mayo Clinic, WebMD, and Wikipedia in the course of analyzing Rowe’s medical claims. Judge Hamilton’s opinion, concurring in part and dissenting in part, castigates the majority for its extra-record adventures. Let’s start with Judge Hamilton (emphasis added):

I must dissent, however, from the reversal of summary judgment on Rowe’s claim regarding the timing for administering his medicine between January and July 2011 and after August 2011. On that claim, the reversal is unprecedented, clearly based on “evidence” this appellate court has found by its own internet research. The majority has pieced together information found on several medical websites that seems to contradict the only expert evidence actually in the summary judgment record.

Gotta love Judge Hamilton’s use of scare quotes around “evidence.”

Judge Posner’s opinion defends the use of outside research because pro se prisoners like Rowe don’t have easy access to expensive expert witnesses to support their claims, arguing that “[i]t is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.” (By the way, Judge Posner seems quite fond of the h-word these days; remember his calling Chief Justice Roberts’s gay-marriage dissent “heartless.”) Judge Hamilton’s opinion doesn’t buy it:

The majority writes that adherence to rules of evidence and precedent makes a “heartless … fetish of adversary procedure.” Yet the majority’s decision is an unprecedented departure from the proper role of an appellate court. It runs contrary to long-established law and raises a host of practical problems the majority fails to address.

After acknowledging the existence of a debate on the subject of factual research by judges, Judge Hamilton writes this (emphasis added):

Using independent factual research to find a genuine issue of material, adjudicative fact, and thus to decide an appeal, falls outside permissible boundaries. Appellate courts simply do not have a warrant to decide cases based on their own research on adjudicative facts. This case will become Exhibit A in the debate. It provides, despite the majority’s disclaimers, a nearly pristine example of an appellate court basing a decision on its own factual research.

Ouch. Translation: “Judge Posner, you are now the poster child for irresponsible judicial fact-finding.”

Later on in the opinion, Judge Hamilton refers snarkily to “[l]aw-office or judicial-chambers medicine,” arguing as follows about the web:

Law-office or judicial-chambers medicine is surely an even less reliable venture. The internet is an extraordinary resource, but it cannot turn judges into competent substitutes for experts or scholars such as historians, engineers, chemists, psychologists, or physicians. The majority’s instruction to the contrary will cause problems in our judicial system more serious than those it is trying to solve in this case.

In other words, to use a health-care metaphor, the medicine here is worse than the disease.

Wednesday notes ICYMI edition

1.  The Wilkie Ferguson Courthouse was closed yesterday for two hours while the feds dealt with a suspicious package.  This happens on a daily basis at the state courthouse and it doesn't cause lockdowns for two hours where no one can get out of the building.  What took two hours and why is it safer to lock people up in the building for two hours?

2.  The 11th Circuit website is down as we speak, but there were a few interesting opinions earlier this week.  One was by D.C. Circuit Judge Ginsburg on structuring, which really expanded what constitutes structuring.  Judge Rosenbaum thought the D.C. judge for the 11th Circuit (joined by her former boss Judge Marcus) went too far:

During oral argument in this case, the Court, in effect, asked counsel for the government whether a salaried person who earned $9,000 a week and deposited it in cash weekly, intending at least in part to evade the reporting requirement, committed the crime of structuring under 31 U.S.C. § 5324(a)(3). The government suggested that such a person did. Today the Court embraces this construction of § 5324(a)(3) as the law.
Granted, most of us do not have the problem of trying to figure out what to do with our $9,000-per-week salary, but this same logic applies to any weekly salary payment under $10,000. And it does not end with weekly salary payments. As a result of today’s ruling, in this Circuit, no matter how small a sum of money a person may possess or otherwise enjoy a right to control—even if only a few dollars—he may find himself facing structuring charges if he goes to the bank often enough to create the appearance to the government of engaging in a pattern of financial transactions of $10,000 or less. I suppose that we will discover in the coming years how frequent a bank visitor one must be to imperil himself, but, in any case, it is clear today that § 5324(a)(3) has taken on a far broader reach than Congress ever intended.

3.  Judge Rosenbaum wrote the majority of this other interesting opinion dealing with a dispute in the Glock family.  And yes, she fires away with lots of gun metaphors.  But I like the pop culture references like footnote 2:

Within four years of their arrival in the United States, Glock firearms worked their way into American pop culture in Die Hard 2, when Bruce Willis’s character John McClane made the remark, “That punk pulled a Glock 7 [sic] on me. You know what that is? It’s a porcelain gun made in Germany. Doesn’t show up on your airport X-ray machines, here, and it cost more than you make in a month.” http://www.imdb.com/title/tt0099423/quotes (last visited Aug. 15, 2015). Ironically, the statement was factually inaccurate in just about every way.

Yippee Ki Yay!

Guest Post by Margot Moss on Boot Camp Graduation in State Court

Today was another moving Boot Camp graduation for 32 young male cadets through the Miami-Dade Boot Camp Program.  For 20 years, Miami-Dade Corrections has been putting young men and women, previously destined for lengthy prison sentences, through the rigors of Boot Camp and giving them a second chance on life.  The program is a big success.  The numbers speak for themselves -- a recidivism rate of only 8%.

This ceremony was particularly special because of two guests.  Jason Bravo, a former Boot Camp graduate, now lawyer, spoke to the class about believing in themselves and continuing on the right path, as hard as it may be.  

Dwayne "The Rock" Johnson also spoke to the cadets and their family members, disclosing that he had been in trouble with the law multiple times as a teenager and knew what it was like to disappoint his family and friends.  Had it not been for people seeing the potential for more in him, he would have ended up in prison.  

Judge Nushin Sayfie had previously told the graduates that they may not be like the Rock, but they had the ability to become something good.  Johnson followed up on this thought and told them that it's true that they wouldn't be like him.  Instead, they could become something even better than him.  It was very inspiring.

HBO was there filming for a documentary that Dwayne Johnson pitched, heavily supported, and will appear in.

It was a good day in criminal court.

The feds used to have boot camp as well, but it was disbanded back in the early 90s due to budget cuts.  It should be put back in place and it should use the state as a model.

By Margot Moss

This summer's big winners are...

... Aimee Ferrer and Alex Arteaga-Gomez.  These AFPD's just won an across-the-board acquittal after a 6-week fraud case before Judge Martinez for Cristal Clark. (The jury hung on all counts as to the co-defendant, Dave Clark). The case had lots of twists and turns, including an 11-member jury at the end when it reached its verdict on Friday afternoon.  The AP has some coverage:

Dave Clark's defense contended that the developments were legitimate and only collapsed because of the financial recession, not due to any criminal wrongdoing. The attorneys for Cristal Clark, meanwhile, said she relied on her husband and his financial advisers and committed no crimes.
In June 2014, Dave Clark was extradited from Panama and Cristal Clark from Honduras to face the U.S. charges. Both have been jailed as flight risks ever since. After Cay Clubs failed, Dave Clark and two partners formed a Cayman Islands-based company that opened a string of pawn shops across the Caribbean known as CashWiz.
Some of the fraud charges against the Clarks stem from that business, with prosecutors contending the couple were illegally siphoning off for themselves cash the company was making buying and selling gold.

Congrats to the FPD's office and to Aimee and Alex.

This is a good example of why judges are too harsh with bond.  It takes a lot of courage and perseverance to wait in jail over a year to try your case.  The New York Times covered the bail problem with a front page story here.  The story focused on low-level indigent defendants, but it's really a huge problem in all cases as judges have become more and more stingy with bonds, even for first-time non-violent offenders. 

In other news, Judge Diane Ward is really cool.  She is collecting and showing courtroom sketch work from well-known federal trials in Miami.  This is an awesome project.  And thankfully, the sketches don't look like this one!  From Dave Ovalle and picture by Emily Michot:

For many young lawyers who dart down the halls of the criminal courthouse, the history of Miami-Dade’s legendary legal dramas — along with the names of famous lawyers and often infamous defendants — might ring unfamiliar.
There was Ted MacArthur, the ex-homicide detective who murdered his wife in 1989. Joseph Hickey, the son of a Miami judge, who tried to extort $2 million in a bizarre kidnapping hoax. And Al Sepe, the Miami judge who did 18 months in prison in the notorious “Court Broom” judicial corruption scandal that erupted in 1991.
“It was the second-biggest corruption scandal in the nation’s history, and no one remembers it,” said Miami-Dade Circuit Judge Diane Ward as she walked down a hallway behind her courtroom.
Thanks to Ward, the enduring images of those and other important trials — sketched in bold pastel strokes by South Florida courtroom artists — now hang in a hallway behind her fourth-floor courtroom at the Richard E. Gerstein Justice Building. For the judge and lawyers who recently loaned her framed sketches, the corridor has become a mini-museum documenting not only the cases of yesteryear but the fading art of courtroom sketching.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article31251140.html#storylink=cpy

An Argument for cameras in Federal Court... bad sketch artists

This is supposed to be Tom Brady:

On Johnson retroactivity, the Eleventh Circuit splits with the Seventh Circuit

Last week, the Seventh Circuit held that Johnson v. United States, which held that increasing a sentence under the Armed Career Criminal Act's residual clause is unconstitutional, applied retroactively on collateral review. Today, the Eleventh Circuit, in a 2-to-1 decision, came to the opposite conclusion.

The majority opinion starts this way:

This application for leave to file a second or successive motion to vacate, set aside, or correct a federal sentence requires us to decide whether the decision of the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), established "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court," 28 U.S.C. § 2255(h)(2). Gilberto Rivero was sentenced as a career offender under what were mandatory United States Sentencing Guidelines, and his judgment of conviction and sentence was upheld on direct appeal and collateral review, id. § 2255. Rivero now applies for leave to file a second or successive motion under section 2255. Because we hold that Johnson did not establish a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, we deny Rivero's application.

The majority disagreed with the Seventh Circuit:

We acknowledge that one of our sister circuits has held that Johnson applies retroactively to decisions on collateral review, but we are unpersuaded by that decision. See Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015). In Price, the Seventh Circuit explained that "[t]here is no escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on collateral review" because "[a] defendant who was sentenced under the residual clause necessarily bears a significant risk of facing a punishment that the law cannot impose upon him." Id. at *7. We disagree. We can "escap[e] th[at] logical conclusion" because Congress could impose the punishment in Johnson if Congress did so with specific, not vague, language.

Judge Jill Pryor dissented:

I dissent because I believe that in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court announced a new substantive rule of constitutional law that the Court has made retroactive to cases on collateral review. In no uncertain terms, the Supreme Court has said that "decisions that narrow the scope of a criminal statute by interpreting its terms . . . . apply retroactively . . . ." The majority concedes that Johnson is that very type of narrowing decision. So does the government, which does not contest Johnson's retroactivity.

Will be interesting to see how this plays out.

Should judges blog?

I say yes.  If Supreme Court Justices can write books and give speeches, what's the real difference?

Judge Kopf stopped blogging, but wishes more judges would get involved (via NLJ):

A month after U.S. District Judge Richard Kopf of Nebraska abruptly shut down his controversial blog, he still believes federal judges and even Supreme Court justices would do “far more good than harm” if they publicly blogged and tweeted.
“Properly done, the public’s perception of the federal judiciary is enhanced when judges speak and write candidly about our courts,” Kopf said in an exclusive interview with The National Law Journal.
Kopf added that he might blog again—but not about judging or the law. “I have burned too many bridges to continue that activity on a regular basis,” he said, expressing regret about some but not all of his headline-making blog posts over the past two years.
For example, he stood by his June 22 post in which he urged Justice Anthony Kennedy to “zip the pie hole shut” on issues like solitary confinement.
The 68-year-old Kopf ended his blog Hercules and the umpire on July 9, after learning from Judge Laurie Smith Camp, chief of the U.S. District Court for Nebraska, that it came up during a retreat for court employees that Kopf did not attend. She told him that the "great majority" of the employees indicated they felt his blog had become an embarrassment to the court.
That discussion followed a July 6 post in which Kopf pronounced U.S Sen. Ted Cruz, R-Texas, "demonstrably unfit to be president" because of his proposal that Supreme Court justices stand for judicial-retention elections every eight years.

Some of the Q&A:

NLJ: With benefit of hindsight, do you think you should have stayed your pen, so to speak, and not posted your more controversial opinions? I'll ask about some of them, one by one. First, telling the Supreme Court to STFU because it decided to rule on the Hobby Lobby case involving contraceptive coverage in health care plans.
Kopf: First, nothing that follows is intended to make excuses for my many errors. I don’t regret writing most of the Hobby Lobby post. The last sentence is the one I regret. Specifically, I do regret using “STFU.” Using that acronym was unnecessary and distracting; it was also too cute by (at least) half.
NLJ: What about your comments about how female lawyers dress in your court, and your reference to a woman who "wears very short skirts and shows lots of her ample chest." You added, "I especially appreciate the last two attributes.”
Kopf: The subject of how female lawyers dress for court was worthy of discussion, but the post was offensive. When I wrote it, I thought the post was merely sardonic and self-mocking. I was wrong. But, as my old law partner and dear friend used to say, there is no fixing dumb, and that applies to me in spades.

I'm baaaaaaacck

Big thanks to the the guest bloggers and posts while I was away.  Entertaining, informative and a little different than what you usually get from me, so that's really great.

Lots of complaints about prisons in the press, but not much action.  Here's the L.A. Times on the Supermax, and the Washington Post on solitary confinement. When will the Supremes take up the issue?

Former Broward Teachers Union President Pat Santeramo was indicted.  Paula McMahon is covering the story and Ben Kuehne is defending.

The 11th Circuit finally decided to dump one of the most ridiculous procedural rules ever. Now if the Supreme Court decides an issue after you've filed your initial brief, you can still raise the issue in a supplemental filing. 

Looks like the 4th Circuit in Graham created a Circuit split with the en banc 11th in Quartavious Davis on the cell-site data issue.  Hopefully the Supreme Court will take it (I'm biased as I am counsel of record for Davis).  My co-counsel, the ACLU, covers the story here.

Line spacing

Thanks to each of you who participated in last week’s poll on citing document numbers. You overwhelmingly chose “D.E.” over the other options.

In the comments to the post, a reader writes: “My goodness, this is boring. What’s next, a cutting analysis of whether 1.5 of 2.0 spacing is more effective???”

Perhaps there’s some sarcasm there. But the comment touches on a serious topic. Given each lawyer’s style and the challenge of adequately making arguments within the page limit, the question whether we should use 1.5 or 2.0 line spacing for our documents arises with some frequency.

First of all, when it comes to line spacing, do we—lawyers practicing in the Southern District of Florida—have a choice? And if we do, how to choose?

The local rules say we have a choice. Local Rule 5.1(a)(4) permits court documents to “have not less than one and one-half (1 ½) spaces between lines.” But some judges require documents to be double-spaced. So how we space our documents may be governed by the judge we’re appearing before.

Assuming we have a choice, what, then, should it be? There’s no easy answer. According to the Internet, many people think that 1.5 line spacing is easier to read. Others tout the environmental benefits of 1.5 line spacing; all things being equal, you use fewer pages. And there’s good precedent for it. When he was on the Southern District of Florida, Judge Jordan was a well-known 1.5 spacer.

But double spacing seems to be standard in the law. Most judges double space their own documents. And certain style guides—such as the Chicago Manual of Style—say documents should be double-spaced.

There are also practical considerations. You may prefer double-spacing, but opt for 1.5 spacing when you need more space.

Here’s this week’s poll:

What line spacing do you use in court documents?

Always 2.0

Always 1.5, unless the judge requires otherwise

1.5, but only if I need extra space

Other

 

pollcode.com free polls