Do as I say, not as I do

That's the motto of the DOJ.  From TechDirt, DOJ Says Body Camera-Wearing Cops Aren't Allowed To Partner Up With Federal Agencies: "As we've covered before, the DOJ supports the idea of body cameras for local law enforcement agencies. It has set aside over $20 million a year in funding to help these agencies out. But it has no love for body cameras within its own agencies. There are no body cam requirements in place for FBI, DEA, ATF or the US Marshals Service.  In fact, if you're a member of a law enforcement agency which does have mandated body cams, you're no longer welcome to play in the big boys."

Other notes:

-- Do you like being the "law guy" in trial?  The NY Times covers these law guys:

As the public corruption trial of State Assemblyman Sheldon Silver heads to closing arguments on Monday, the clash in the courtroom has been handled largely by well-staffed government and defense legal teams, each with a wealth of experience in handling corruption cases.

But on Thursday, two unfamiliar lawyers took the stage to try to shape the instructions that the judge will give to the jury before deliberations.

In a case in which no witness testified directly to knowledge of an illegal quid pro quo, how Judge Valerie E. Caproni tells jurors to interpret the evidence as it relates to the law could sway deliberations — a fact certainly not lost on the government or the defense.

The two lawyers had largely disappeared during Mr. Silver’s three-week trial in Federal District Court in Manhattan; James M. McDonald sat quietly at the end of the prosecution table, while Robert K. Kry, a defense lawyer, did not even show up in court.

But it was clear late on Thursday, with the parties and the judge seated around a conference table and the jury not present, that Mr. McDonald and Mr. Kry had critical roles as legal specialists in the case — “the law guys,” as several experts put it — a role the public rarely hears about.

-- Oh, and the Marlins suck.

Ovalle's "most Miami story" ever?

He says it might be.  Check it out here.  It involves porn stars, molly, snitches, and all things Miami:

The investigation that cracked open one of the largest synthetic drug rings in Miami history began with an angry naked porn star jumping on her boyfriend’s white Porsche.
The police call to that lovers spat would eventually lift the lid on a cast of characters straight out of a Hollywood buddy movie. In the leading roles: Matthew Anich and Jorge Ramon Hernandez, two guys who boasted seemingly straight-arrow backgrounds of college degrees and military experience but also shared a taste for Miami’s flashy club culture.
They pumped iron, co-owned a tattoo shop, drove fancy cars and chased an array of party girls — all while, prosecutors say, secretly importing club drugs from shady Chinese labs and enlisting a crew of well-placed associates: Sexual conquests wired money overseas and picked up shipments; strippers and at least one DJ peddled pills that brought in millions of dollars.

Read more here: http://www.miamiherald.com/news/local/crime/article45772970.html#storylink=cpy

Other towns reminisce about former Chief Judges, like Charles Evans Hughes.  From the WaPo:

All were in the air last Friday night, when the 17th chief justice of the United States, John G. Roberts Jr., came to the Historical Society of the New York Courts to celebrate the 11th chief justice of the United States, Charles Evans Hughes, about whom it was once said: “He looked like God and talked like God.”
he current self-deprecating chief justice claimed neither distinction in a crisp, 16- minute presentation that evoked frequent laughter. And if you listened closely, it said a few things about Roberts as well: the way he views the responsibilities of the job and his low-key response to the controversies surrounding the court.
If Roberts was nominated as chief justice as an unknown outside legal circles, Hughes arrived as a “brand,” Roberts said. He had a career in law, politics and diplomacy and a white beard that gave the impression he had been sent from central casting.
President Theodore Roosevelt described him as “a bearded iceberg”; Hughes’s political rival William Randolph Hearst labeled him an “animated feather duster.”
He defeated Hearst to become governor of New York, where he developed a reputation as a crusader cleaning up Albany. When President William Howard Taft persuaded him to join the Supreme Court in 1910, he delayed the move to spend a few more months as governor.
He left the court six years later when the Republican Party drafted him at its convention to run against Woodrow Wilson. Hughes lost by 23 electoral votes.
In private practice, he argued cases before the Supreme Court 25 times before President William Harding persuaded him to be secretary of state. And in 1930, President Herbert Hoover nominated him to return to the court as chief justice.
Hughes, who was 86 when he died in 1948, was so iconic, Roberts said, that a letter bearing only a sketch of Hughes and the address “Washington, DC” was delivered, “no questions asked.”
Hughes was the presiding chief justice when the Supreme Court in 1935 moved from its home in the basement of the Capitol to what Roberts called “our current majestic place of work” across the street.
But, more important, Roberts said, Hughes was leading the court during the greatest threat to its independence: Franklin Delano Roosevelt’s plan to add enough friendly justices to gain control of the court, which had been striking down Roosevelt’s programs designed to lift the country out of the Great Depression.
“It fell to Hughes to guide a very unpopular Supreme Court through that high-noon showdown against America’s most popular president since George Washington,” Roberts said.

 When you don't have porn stars and molly, you gotta stick to court-packing plans...

Will the Supreme Court tack to the right?

That seemed to be a real possibility according to SCOTUSBlog's Amy Howe, who spoke today before the Federal Bar Association in Miami.  Last Term many thought that the Court issued left-leaning opinions, including the blockbuster on gay-marriage.  This Term, the docket is chock-full of interesting cases but ones that may lend themselves to opinions written by the conservative wing of the Court -- from abortion to voting to affirmative action.  And the big decisions will come out near the end of the Term, right before the election.  So it will be interesting to see how the opinions affect the general election.

Amy was a fantastic speaker as she always is -- full of knowledge about the cases and the inner-workings of the Court.  Hopefully she will be back again next year, for a 5th time.

RIP Judge Peter Palermo

I'm so sad to report that Judge Palermo passed away this weekend. 

He was 97!

He was appointed back in 1971 as the first Magistrate Judge in the Southern District of Florida.












One of the nicest men I've ever met.

A true gentleman.

And a great story teller.

Old school.

He will be sorely missed.

Congrats to Judge Paul Huck

It was a beautiful portrait hanging ceremony on Friday afternoon for Judge Huck and his year of the fives:

75 years old
25 years married to Donna (who gave a great speech)
15 years as a judge
5 years as a senior judge

The event was packed with friends, family, and former clerks and staff.

And the speeches were funny and warm.

Huck's former law clerk had the place cracking up. He was excellent. (I didn't catch his name. Could someone post it in the comments and then I will update the post).  UPDATED -- it's Adam Deckinger.

Judge Huck even gave the blog a nice shout out, which was very cool!

Here are some pictures:

GUEST POST BY DORE LOUIS ON SILA LUIS v. U.S.

"You’re not looking for CJA rates are you?"

--Chief Justice Roberts to Howard Srebnick when the CJ was asking how a district court is to determine how much money should be used for a fee.

I was able to travel to D.C. to sit in the Supreme Court and watch Howard make his argument in Luis v. US – a case, which as was made clear during oral argument, has the potential to impact any defendant wishing to retain private counsel.

I had never been to the Supreme Court before, so attending the argument of my former professor was an exciting prospect. The pictures of the building and even video you may have seen do nothing for its grandeur. As you stand at the bottom of the steps looking up at the main entrance, you get a very real sense that you are standing before the “temple of justice” that the architect envisioned. The feeling does not diminish as you move through the different portions of the building to the courtroom.

As a member of the Supreme Court bar, there is a special and much shorter line to wait in to enter the building. It is first come first serve, and there are no “placeholders” permitted. When I arrived at 7:15, I was the fourth lawyer waiting to enter, compared with the 80 or so non-lawyers in a different line. Once you receive your pass, you have time to grab some breakfast in the cafeteria and check your phone. In many ways, the building has the feel of any other courthouse – security, lines, procedures, Marshals, etc., but when you realize the history that the Court has made, and look at the scale and architecture of everything, you know you are in a special place.

After breakfast, it is up to the courtroom – the soaring ceiling containing freezes high above the gallery (which interestingly enough, have tablets representing the Ten Commandments), makes the space seem more intimate than it actually is. However, as it fills with the many people who attend, you begin to appreciate that the room is actually quite large. The first order of business was the moving and swearing in of new bar members. It was particularly touching to see a father make the motion (before all 9 justices) on behalf of his daughter. There were new military lawyers being moved in as well – the sight of their perfect uniforms was quite impressive.

As soon as that was over, argument began. The first case was one involving class actions. It was an interesting contrast with Howard’s case. The point the justices were considering was much narrower; it dealt with the application of prior precedent to FLSA claims and the appropriate use of statistical damages models. Howard’s case on the other hand, dealt with much broader constitutional issues that have the potential to effect anybody charged with a crime. Both arguments were interesting in part because the justices were quite combative with the advocates in pressing their positions.

At its core, the question in Luis v. US is whether or not the government can restrain untainted assets and prevent a person from using them to hire a lawyer, under a theory that the assets could later be used to pay a fine or restitution.

Justice Breyer was openly hostile to the proposition and at one point had a rather testy exchange with the assistant solicitor general arguing the matter, which prompted the ASG to use more snark than I had ever witnessed in an appellate argument – in my view it would have more appropriate for him to have said “let me finish answering your questions please” rather than saying the same thing with sarcasm.

Justice Kennedy and Chief Justice Roberts got the ASG to commit that the government’s position necessitated a view that anybody charged with any crime, at any level – municipal, state or federal – could find their untainted assets frozen after being charged, and thus be unable to hire private counsel, solely for the purpose of paying a potential fine or money judgment in the event they were later convicted.

The proposition clearly did not sit well with a number of the justices. I have zero clue as to how the opinion is going to come down.

One interesting thing was Justice Thomas’s animation. Although true to form, he asked no questions, he was quite active on the bench – making notes, referring to the briefs, and on a few separate occasions, sharing comments and a laugh directly with Justice Breyer.

I highly recommend a visit to the Court to watch oral argument – all the better if it is somebody you know who is making it. It was very cool to see one of us up there fighting on an issue that was so important to his client, but equally so to all of us and our clients.

Two notes – 1 – the gift shop in the building sells books written by the Justices – I found that a bit tacky and odd. In my humble opinion, I think there are more appropriate places for that type of business. 2 – Howard made clear that his efforts were supported by and involved the work of numerous others: Scott Srebnick, Ricardo Bascuas and Joshua Shore were on brief. At the table were Roy Black, Scott Srebnick and Scott Kornspan, and Howard mentioned a ton of additional people who assisted him in preparing for the argument.

How does Chief Justice Roberts assign opinion writing

Adam Liptak has this pretty interesting article about a study done by Professor Richard Lazarus:

Chief Justice Roberts made certain that each justice had almost exactly the same number of majority opinions. His record on this score, Professor Lazarus found, is “unmatched by any prior chief justice.”

But not every opinion is equally desirable. Deciding which cases are most important involves an element of judgment, though close observers of the court’s work will agree on them most of the time. Professor Lazarus relied on charts published each term in The New York Times to identify 85 major cases.

That set of decisions tells a fascinating story about the Roberts court. The chief justice assigned about a third of the big opinions to himself and another third to Justice Anthony M. Kennedy.

The assignments to Justice Kennedy have a distinct purpose, Professor Lazarus wrote: to lock in his vote in close cases.

“One of the easiest ways to reduce the risk of the swing justice swinging the other way is to assign the opinion to that justice, thereby ensuring that the opinion is one he or she will be willing to join, even if the court’s holding may be far narrower as a result,” Professor Lazarus wrote.

After Justice Kennedy, Justice Samuel A. Alito Jr. was next in his share of big cases, with 16 percent. Justice Sonia Sotomayor was alone in getting no majority opinions in major cases.

The study’s most surprising finding concerned Justice Alito, the junior member of the court’s conservative wing, and Justice Antonin Scalia, its senior member.

Justice Scalia joined the court in 1986 and is its longest-serving current member. But he received about the same percentage of assignments in big cases as Justice Alito, who did not arrive until 2006. “Especially given how much seniority plays a systemically important role within the court,” Professor Lazarus wrote, “this is a striking result.”

Justice Alito is apt to write opinions of the sort Chief Justice Roberts prefers, Professor Lazarus wrote: incremental, without rhetorical flourishes, and able to command five votes.

So who will write the Luis case being argued this morning by Howard Srebnick? More on that later.

When should judges retire?

Here's a lengthy AP article about how the 9th Circuit is addressing senility and other such problems among aging judges. From the conclusion:

Richard Carlton, who runs the 9th Circuit's counseling hotline, said he gets a handful of calls a year from judges concerned that a colleague may be impaired.

"A lot of these situations resolve themselves pretty quickly," he said. "It often times turns out to be some kind of physical condition or some new medication somebody's taken, or they're in the process of transitioning from senior status to full retirement."

Over the past five years, the 10th US. Circuit Court of Appeals, which includes Colorado and five other Western states and has its own judicial health program, has addressed at least two complaints that could reflect mental decline.

One accused a senior district judge of falling asleep during a court proceeding.

The judge said a tiring family emergency may have been to blame and indicated that he would reduce his caseload and decline trials and lengthy hearings, according to a 2010 order by the circuit's chief judge.

The second complaint by a judge's former law clerk accused the judge of forgetfulness and erratic, abusive behavior. The judge underwent psychological screening and was cleared of any mental disability, according to a 2014 order by the circuit's chief judge.

The judges and complainants were not identified.

Canby encourages his colleagues to get ahead of any complaints by, like him, voluntarily declining to regularly hear cases at some point. In an article in the 9th Circuit's wellness newsletter, he said impaired judges threaten public confidence in the judicial branch.

"If a great majority of judges are determined to keep on judging until they are no longer mentally able to perform properly, instances of impaired judges still making decisions will multiply," he wrote. "The consequence of such behavior will be an unacceptably high rate of institutional damage."

Falling asleep during a court proceeding? If that's cause for forced retirement, we'd have quite a number of judicial emergencies...

Scalia v. Breyer in criminal case

And Justice Scalia is again supporting the defendant, this time in a statutory construction issue. From Slate:

Tuesday’s big moment, then, arrives when Scalia casts aside the musty canons and tosses a new idea on the table: the rule of lenity, which dictates that an ambiguous criminal law should be resolved in favor of the defendant. After Ann O’Connell, counsel for the government, concedes that “the canons of interpretation don’t get anybody 100 percent of the way there,” Scalia pounces.

“I agree!” he says with a Yoda-like head tilt. “And what I worry about is the rule of lenity. You have these dueling canons, and you have a rule that when the government sends somebody to jail for 10 years, it has to cross sharp corners. It has to dot every i and cross every t. It has to be clear!”

Scalia pauses. From either end of the bench, Justices Sonia Sotomayor and Elena Kagan lean forward to watch him speak. Nino still has a few surprises left in him.

“We’ve been discussing dueling canons and so forth,” he continues. “My goodness! I have no assurance what the right answer is. But I think that somebody could read this and think that it means what the petitioner says it means. And if that’s the case, it seems to me the rule of lenity comes into play. That’s what concerns me most about this case—not the dueling canons.”

Justice Stephen Breyer perks up visibly. Scalia has spent much of his career arguing for canons and textualism and strict constructionism. Breyer has spent most of his career fighting against all that, in favor of more flexible, contextual, practical mode of interpretation. Suddenly, Scalia appears to be joining his team. Breyer decides to see how far he can push his frequent sparring partner.

“So if we are absolutely at equipoise,” Breyer says, “before turning to the rule of lenity, I would like your comment”—he grins slightly—“on my temptation”—his grin becomes a smile—“to say, at least here”—Scalia turns to watch—“that the legislative history helps.”

“I knew you were going to say that!” Scalia roars with a chortle, and the courtroom explodes into laughter. “I knew it!”

Caught in between Scalia and Breyer, Justice Clarence Thomas chuckles, too. Thomas and Scalia, of course, despise legislative history and absolutely refuse to use it. But Breyer boldly presses on, citing a congressional committee report stating that the law in question was designed to enhance a defendant’s penalty “if they had a prior conviction for sexual abuse of a minor.”

“And that’s what the drafter would have been looking at,” Breyer continues, “when working with the staff of the committee when trying to translate general intentions of senators and representatives into actual language. And I think it’s not contrary to popular belief to say that senators and representatives do hire staff to do such things and do not sit there with a pen and pencil thinking, where does the or go?”

Breyer’s thoughtful defense of legislative history receives a verbal middle finger from Scalia.

“You don’t think Congress can leave it to its staff to decide what a statute means, do you?” Scalia asks O’Connell, beaming like a naughty little boy who isn’t really sorry he broke the fine china. “Isn’t legislative power nondelegable?”

The Cal Ripken of the Judiciary...

...is Gerald Tjoflat. From the Daily Report:

When it comes to retirement, federal judges have a pretty good deal.

Assuming they've been on the federal bench for at least 15 years, they can retire when they are 65, keeping their full salary. If they want to stay in the game, they can go on what is called senior status, where they stay on the payroll but with a lesser workload.

Gerald Bard Tjoflat, a judge on the U.S. Court of Appeals for the Eleventh Circuit, was eligible to retire or take senior status 20 years ago. But he is going nowhere, it seems, keeping a full caseload.

At 85, the Gerald Ford appointee is the longest serving, currently active federal judge in the country. Appointed to the district court in 1970 by Richard Nixon, Tjoflat celebrated his 45th anniversary as a federal judge last month. And this month—his wife, Marcia, keeps track, he says—he becomes the only judge to have been in active service on a federal court of appeals for 40 years.

He hardly seems to be slowing down. Though it has been nearly 20 years since he served as the Eleventh Circuit's chief judge, he recently headed up a highly sensitive inquiry into conduct by an Alabama federal judge. He continues to regularly churn out opinions of 40 pages or more.

In a recent interview at the Eleventh Circuit's Atlanta courthouse, as well as some follow-up exchanges, Tjoflat discussed his life and career.
A 'Freakish' Court Appointment

Born and raised in Pittsburgh, Tjoflat attended college at the University of Virginia, where he played college baseball. He even worked out with the Cincinnati Reds for a couple of weeks one summer. But Tjoflat says a desire to keep his education on track, as well as problems with his feet, kept him from going further. Born with club feet, he says, they had to be essentially reconstructed with experimental surgery when he was an infant.

While he was at UVA, his family had moved to Ohio, and he switched to the University of Cincinnati, where he began law school. (He never received an undergraduate degree, he says.) His father was an engineer and patent lawyer. "I went to law school for no other reason than that," says Tjoflat.

The Korean War interrupted Tjoflat's law school studies. Tjoflat says he spent the war in Virginia as a counterintelligence agent, doing investigative work that cemented his decision to pursue a legal career. He returned to Cincinnati but ultimately received his law degree from Duke University in 1957.

Taking an offer from a firm in Jacksonville, Florida, Tjoflat spent about a decade in a general private practice.

He describes his appointment to a state trial court opening as "freakish." The area was dominated by Democrats—but the governor who would fill the post, Claude Kirk, was the first Republican since Reconstruction to hold the office. "I was a registered Republican," says Tjoflat. "You could count 'em on your fingers and toes, really." Plus, he says, Tjoflat's firm had represented an insurance company in which the governor had been involved.

Tjoflat says he figured he wouldn't last once he had to face the voters in a partisan race. "I had told my partners, 'I'll see you in January.'" But no one registered to run against him.

And soon, in October 1970, he was nominated by Nixon to a new seat in the Middle District of Florida and confirmed by the Senate a week later.

"How would you feel if your 10-year prison sentence depended on a dangling modifier?"

That's the question asked by Professor Noah Feldman in this piece:

That's the situation for Avondale Lockhart, whose case was heard Tuesday by the U.S. Supreme Court.

Lockhart was caught in a federal sting and pleaded guilty to one count of possessing child pornography. He had a previous state conviction for attempted rape, a form of sexual abuse.

According to federal law, Lockhart gets a mandatory 10-year minimum sentence for the child pornography if he had a prior state conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” The crucial words here are “involving a minor.” Lockhart says they apply to the whole sentence. Because his prior conviction was for attempted rape of a woman, not a minor, the law doesn't apply to him. The government says “involving a minor” just refers to the last part of the sentence, “abusive sexual conduct,” not to what came before. It thinks Lockhart should get the 10 years.

The conclusion:

The upshot is that language is fuzzy and imperfect -- and we need a common-sense solution to that problem, not abstract rules. The court may spend a lot of time talking canons, but it shouldn’t. Statutory purpose is the best way to resolve difficult statutory questions. Lockhart shouldn't get the enhancement under the law -- no matter how much you detest his crimes.

Baby steps

The Tampa Tribune has this nice piece about some of the relief people are getting from Obama's new drug laws.  Here's one story:

Isabelita Duran, 57, knows exactly how much time she spent in federal prison for drug trafficking.
“Twenty years, one month and seven days,” she says.
In that time, her oldest brother died of cancer. Other family members also died.
“I had three aunts die of a heart attack while I was in prison,” she says. “My cousin died.”
Her biggest fear was not getting out in time to be with her elderly, ailing mother.
“When my mother was sick in the hospital,” she said, “I couldn’t do nothing for her.”
Thanks to the retroactive changes in federal drug sentences, Duran is now with her mother. She is on home confinement at her mother’s house in Zephyrhills, wearing an ankle monitor until Feb. 3, when she will be released on probation.
“God answered our prayers,” she said. She says she’s profoundly grateful to be released well before the end of her original 35-year sentence.
She has learned her lesson, she says. “You never should take the easy way out,” she says. “If I see somebody in my ex-life (selling drugs), I would tell them don’t do it. In the long run, it’s not going to pay. You’re going to end up in prison, and that fast money is going to go like water. Nothing is worth it. Nothing is worth losing your family for all those years.”
The sentencing change took 10 years off her term for drug trafficking. The rest of the reduction came from good time behind bars and a year off for completing a drug treatment program.
She was originally arrested in 1995 and prosecuted as part of a ring that trafficked large amounts of heroin and cocaine from Puerto Rico to the Orlando area.
“It was a conspiracy to do drugs,” she says. “It was my first time. There was no violence.”
She says people higher up in the organization received much lesser sentences by pleading guilty and cooperating with the prosecution. “I chose not to cooperate with the government,” she says. “I chose to take my rights and go to trial.”
She says she’s not sure what she thinks her sentence should have been, except it shouldn’t have been more than 10 years. “If you don’t learn in 10 years, you will never learn,” she says. “Prison isn’t going to change you.” That has to come from within yourself, she says.
“I learned my lesson. I know I did wrong and I repented of it and I asked forgiveness to the Lord, you know, and I know I did wrong. I know I didn’t deserve so many years.”
She says she did her time in prisons around the country, frequently applying for transfers so she could take advantage of different programs. In a federal medical center in Texas, for example, she had an apprenticeship as a nurse’s assistant. She participated in a drug program in Connecticut.
She also attended a program on changing her ways and had a quality control apprenticeship in an inmate factory that made military cables and radio mounts. She said she obtained her GED degree and took business classes, too.
“I tried to make it a positive, but prison is never good for nobody,” she said. “But I kept thinking positive. I just worked, went to church — God kept me with a sound mind, sound spirit — did exercise.”
She was released Oct. 7 to a halfway house, but they needed her bed, so she was put on home confinement on Oct. 21. She leaves the house to attend mandated programs, such as a life skills class, and to report to her case manager.
After 20 years behind bars, she has trouble with sensory overload. Crossing the street or taking a bus are overwhelming experiences, and she doesn’t know how to use a smartphone.
One of the first things she wanted to do when she got out was eat some traditional Puerto Rican food — roasted pork and arroz con gandules, or rice with pigeon peas.
She said she loved the nurse assistant training, which gave her skills she is using now to care for her mother. She hopes to find employment along those lines when she is able.
How did she get involved in drug trafficking?
“I’m not going to blame anyone because I had a choice,” she says. “I met this man and he introduced me to it. It wasn’t his fault because I should have known better. I grew up in a Christian home with my mom. ... He showed me that kind of life, and just greed.”
Duran stresses she is not blaming the man who introduced her to drug trafficking.
“I needed money, and I got blind and I said, oh well, and I just did it. But I was young and I had a child. I needed to pay rent. I should have known because I have family that had done everything the right way. They got everything the honest way. I learned my lesson and I paid my time.”

How do we stop racial discrimination in jury selection?

The Batson process certainly doesn't work...  SCOTUS will take up the issue this morning.  From USA Today:

The original jury pool for Timothy Foster's 1987 murder trial in Rome, Ga., included 10 blacks among 95 potential jurors. During the selection process, prosecutors highlighted their names, circled the word "black" on their questionnaires and added handy notations such as "B#1" and "B#2."

After more than half the pool was excused for specific reasons, each side was allowed to make a set number of additional strikes — as long as it wasn't because of race or gender. On a sheet they labeled "definite NO's," prosecutors listed the five remaining black prospects on top, and they ranked them in case "it comes down to having to pick one of the black jurors."

Foster, who is black, was swiftly convicted of murdering an elderly white woman. At sentencing, the prosecutor urged the all-white jury to impose death in order to "deter other people out there in the projects" — where 90% of the residents were black.

In a case that would appear to have multiple smoking guns, Foster's conviction and death sentence will go on trial Monday at the Supreme Court — and so, too, the process by which judges consider claims of racial discrimination in jury selection.

The case is important on two levels. If the justices find that Foster's constitutional rights were violated and instruct that he be given a new trial, the ruling could impact the way prosecutors, defense attorneys and trial judges handle jury selection in the future. And because Foster received a death sentence, it could fuel concerns previously voiced by two justices that the death penalty itself may be unconstitutional — in this case because of racial bias.

And for all of you UM haters out there, I give you this to enjoy this Monday morning:

Marco crushes Jeb

I love watching these debates and seeing what advocacy works and what doesn't.  Watch Marco crush Jeb with this counter-punch:



Would a more effective attack be about judicial nominations?  Rubio won't give the blue-slip on his own judicial nominee:

Sen. Marco Rubio (R-Fla.) keeps taking heat for skipping out on his Senate duties while he's out on the presidential campaign trail. But he's still effective at one thing in the upper chamber: blocking his own judicial nominee.
Rubio is withholding his so-called "blue slip" from the Judiciary Committee to prevent Florida district judge nominee Mary Flores from advancing. The committee won't let any nominee move forward until it has blue slips -- they're literally blue pieces of paper that reflect a senator's support -- from both of a nominee's home-state senators. Florida's other senator, Democrat Bill Nelson, turned in his blue slip eight months ago. But nothing from Rubio.
The weird part is that Rubio supports Flores. He and Nelson recommended her to President Barack Obama, and the president formally nominated her to the U.S. District Court for the Southern District of Florida in February. She's now been waiting for a hearing for 242 days, but can't move without Rubio's sign-off. She would fill a seat that's been empty for 532 days, and that court is so overloaded with work that it's considered a judicial emergency.
Rubio spokesman Alex Burgos said the senator "takes very seriously" his role in confirming judges to the federal bench.
"The Senate Judiciary Committee is still conducting a full review of the nominee’s background and record," Burgos said. "After that review is complete, Senator Rubio will make his own determination based on the committee’s review and his own further review."
It's a curious argument given that Rubio himself recommended Flores. It's also a self-defeating one: Turning in a blue slip has no effect on a committee's review of a nominee. A spokeswoman for Sen. Chuck Grassley (R-Iowa), the committee chairman, said Flores' nomination isn't moving because of Rubio's outstanding blue slip and because a committee review is underway.
Republicans have been slow-walking Obama's judicial picks all year, and prolonged "committee reviews" is one way they can keep doing it. The GOP calculation is that Obama will be gone after 2016, at which point a Republican could be in the White House. If they can hold out until then, they can give GOP-picked judges lifetime jobs on the federal bench.

HT Glenn Sugameli

Michael Szafranski sentenced to 2 1/2 years

Judge Dimitrouleas issued the sentence in this Rothstein-related case. From the Sun-Sentinel:

Michael Szafranski told a crowded courtroom Monday that he betrayed his family and friends, lied, sinned and violated both U.S. law and the strict religious rules he was raised to follow.
"I come before you ashamed, embarrassed and humiliated by my actions," Szafranski told U.S. District Judge William Dimitrouleas before being sentenced for helping Ponzi schemer Scott Rothstein rip off millions of dollars from investors, including members of his synagogue. "To say I am remorseful is an understatement."
Szafranski, 37, of Surfside, was sentenced to 2.5 years in federal prison after the judge agreed to follow a recommendation from the prosecution and defense. He pleaded guilty to one count of wire fraud conspiracy in July.
He sobbed as he hugged his wife goodbye and was taken into custody in the Fort Lauderdale courtroom.

Szafranski said greed drove him to become a "despicable person" and that he has done everything he can think of to try to atone for what he did.
Szafranski "made full restitution" to victims five years ago when he paid more than $6.5 million to the Rothstein Rosenfeldt Adler law firm bankruptcy trustee, his attorney wrote in court records. That amount represented more than 90 percent of his family's assets, the defense said.

Coaches matter (so do lawyers).

See, e.g., UM and the Dolphins.

Monday notes:

1.  Don't laugh during sentencing or your sentence can be doubled.

2.  Finally some relief for the crazy expensive prison calls.

3.  Judge Emmet Sullivan says give drug defendants a break (like corporations get).  Here's his opinion: "Drug conspiracy defendants are no less deserving of a second chance than bribery conspiracy defendants. And society is harmed at least as much by the devastating effect that felony convictions have on the lives of its citizens as it is by the effect of criminal convictions on corporations."

Judge Ungaro published in U.M. Law Review

The intro from, Hon. Ursula Ungaro, Foreword: The Evolution of the Eleventh Circuit Court of Appeals: A New Era of Diversity on the Bench, 69 U. Miami L. Rev. 929 (2015):

From a historical perspective, 2014 was a pivotal year for the youngest circuit court in the nation. Within a four-month period, three new judges were confirmed and sworn in to serve on the Eleventh Circuit—all having clerked for distinguished Eleventh Circuit judges and all of them women. Judge Robin S. Rosenbaum, a former U.S. District Judge, U.S. Magistrate Judge, and Assistant U.S. Attorney in the Southern District of Florida, was elevated to the seat left vacant by Judge Rosemary Barkett. Judge Julie E. Carnes, a former U.S. District Judge and Assistant U.S. Attorney in the Northern District of Georgia, assumed the seat vacated by now Senior Judge James Edmondson. And Judge Jill A. Pryor, formerly a litigation partner at the Atlanta-based law firm of Bondurant, Mixson & Elmore, holds the seat left vacant by Judge Stanley Birch. This dramatic turnover of a quarter of the court’s authorized judgeships transformed the Eleventh Circuit into one of the most gender-balanced federal appellate courts in the country, with five active female judges to the court’s six active male judges.
There is no doubt that the new judges will enjoy long careers in which they will have ample opportunity to influence the development of the law of the circuit. More immediately, however, their confirmations provide the court with much needed relief. Traditionally, the Eleventh Circuit has been among the busiest circuits, annually shouldering over 500 appeals per judgeship. By December 2013, however, the court had four judicial vacancies and found itself unable to staff its panels with at least two Eleventh Circuit judges. This compelled Chief Judge Carnes to declare a judicial emergency under 28 U.S.C. § 46(b). On October 17, 2014, following the confirmations of the new judges, Chief Judge
Carnes issued General Order 42, vacating the emergency designation. With the confirmation of the new judges, there are now eleven active judges. But the Eleventh Circuit actually has twelve authorized judgeships, the same number as when it was first created. While twelve is a small number in relation to the population now served, and the judges theoretically could request additional judgeships under the judiciary’s own guidelines, Congress has declined to authorize any additional appellate judgeships since 1990. Even if it were inclined to do so, the Eleventh Circuit judges likely would not seek additional positions; they have consistently voiced their opposition to expansion of the court, citing the efficiency, collegiality, coherence, and predictability in the development of law that come with a smaller court.
In 2014, the merit of those values was evident. Incredibly, in 2014, 6,087 appeals were filed and 6,239 appeals were terminated. Though hindered by four judicial vacancies for the greater part of the year, the court terminated 3,796 appeals on the merits and 356 through written decisions, more than any other circuit on both an absolute and per judgeship basis. Further, despite terminating more appeals per judgeship than any other circuit, the court was able to maintain the speedy administration of justice, ranking fifth among the twelve circuits in median case turnover. This productivity, notable in and of itself in light of the judicial vacancies, is more impressive considering the breadth and importance of the issues considered.
As one might imagine, the court considered an array of substantive and procedural issues in 2014. While the court did not issue any blockbuster opinion matching the likes of Bush v. Gore or that striking down the Affordable Care Act as unconstitutional, it did consider a range of issues of first impression, including the scope of medical malpractice liability on the high seas and the constitutionality of enforcing “no loitering” signs posted by private individuals. Moreover, the addition of the three female judges has ushered in a new era of diversity on the court, which is likely to impact how the court approaches the issues presented to it, particularly social issues.

HT Glenn Sugameli

Questions of the day

1. Will the Supreme Court dump the death penalty?  (Scalia wouldn't be surprised).

2.  Should judges be allowed to force defendants to give blood or go to jail?  (Judge Marvin Wiggins so ordered).

3.  Will the feds investigate the Corey Jones shooting?  (The national media is here to examine what happened).

4.  Is duct tape the best thing to use to smuggle in cocaine?  (Well, this guy got caught).  Photo from the Sun-Sentinel:

Happy Back to the Future Day

Awesomeness

Really funny, especially Larry David as Bernie.

If you want some local news, check out Paula McMahon's article about this courtroom deputy who got 8 years for child pornography.  Or about this guy who didn't have the best flight.

If you are interested in the cell-site data case we are working on, Forbes covers it here.  We are filing our reply in support of cert tomorrow.

"The Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta alleges that the Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order is infringing its registered service marks in violation of the Lanham Act, 15 U.S.C. § 1114, and Florida law."

Oh they're at it again... This is the latest in the running dispute between these parties. Judge William Pryor reverses again: "On remand, the district court misapplied several factors in its analysis of likely confusion, incorrectly assessed the Florida Priory’s defense of prior use, relied on historical testimony that we previously deemed inadmissible, and misinterpreted our instructions about consulting facts outside the record. Because the district court erred again, we reverse again. But we deny the Sovereign Order’s request to reassign the case to a different district judge."

This makes me happy.

Harvard debate team loses to NY inmates, via the AP:

Months after winning a national title, Harvard's debate team has fallen to a group of New York inmates.

The showdown took place at the Eastern New York Correctional Facility, a maximum-security prison where convicts can take courses taught by faculty from nearby Bard College, and where inmates have formed a popular debate club. Last month, they invited the Ivy League undergraduates and this year's national debate champions over for a friendly competition.

The Harvard debate team also was crowned world champions in 2014. But the inmates are building a reputation of their own. In the two years since they started a debate club, the prisoners have beaten teams from the U.S. Military Academy at West Point and the University of Vermont. The competition with West Point, which is now an annual affair, has grown into a rivalry.

At Bard, those who help teach the inmates aren't particularly surprised by their success.

"Students in the prison are held to the exact same standards, levels of rigor and expectation as students on Bard's main campus," said Max Kenner, executive director of the Bard Prison Initiative, which operates in six New York prisons. "Those students are serious. They are not condescended to by their faculty."

Students on the Harvard team weren't immediately available for comment, but shortly after the loss, they posted a comment on a team Facebook page.

"There are few teams we are prouder of having lost a debate to than the phenomenally intelligent and articulate team we faced this weekend," they wrote. "And we are incredibly thankful to Bard and the Eastern New York Correctional Facility for the work they do and for organizing this event."

SCOTUS debates Florida death penalty post Ring

I'm sure it was more interesting than the snoozer of a debate last night in which the Supreme Court didn't come up.

The DP case before the Supreme Court was Hurst v. Florida. SCOTUSBlog has coverage of the interesting oral argument:

The case is about a brutal murder in a fast-food restaurant in Pensacola, but it reaches the Court as a clear-cut test of what the Justices had in mind in the 2002 decision in Ring v. Arizona. That ruling seemingly enhanced the role of the jury in capital punishment cases, assigning them the crucial task of deciding the facts that make a person accused of murder eligible to be put to death.

The Florida Supreme Court has taken the position that the Ring decision does not even apply to its death penalty system — a position that its lawyer — state Solicitor General Allen Winsor — did not repeat on Tuesday, even as he argued that the system fully satisfies that ruling. It would be Winsor who would, before the hearing ended, face the hardest questions about moral responsibility.

Hurst’s lawyer, Washington, D.C., attorney Seth P. Waxman (a former U.S. Solicitor General), left no doubt from the outset that he was aiming to put Winsor on the defensive on the jury question. “Under Florida law,” he began, “Timothy Lee Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death.”

Under Florida law, no one can be put to death unless there is a finding of one “aggravating factor” — usually, some fact about the crime or the way it was committed that would justify the ultimate penalty. The jury, Waxman noted, only offers an advisory opinion to the judge about such factors, and then suggests either life or death.

Waxman quoted from Florida law, noting that the judge makes the crucial finding of aggravating factors “independently, and, quote, ‘notwithstanding the jury’s recommendation as to sentence.'” For most of his argument, he never strayed far from that point or from his secondary point that Florida is the only state to do it in that way. The Justices, as usual, tried a few hypotheticals to test the way the Florida arrangement actually works, but the sidelining of the jury was almost always a part of Waxman’s answers.

From the moment that Florida’s Winsor took the lectern, arguing at first that his state’s system was constitutional before and after Ring v. Arizona, he was almost constantly bombarded with probing questions about what juries actually did under that system. Justice Sonia Sotomayor was perhaps the most aggressive questioner.

Winsor sought to show that the task given to Florida juries was a serious one, but the questions from the bench continued to suggest that, no matter what the jury did or recommended, it could be overridden by the final choices that are assigned to the judge. At some points, it appeared that the state’s lawyer was making at least some concessions that part of the system would not satisfy the Ring precedent.

Some light reading for those working on Columbus day

1. Diveroli v. U.S. starts this way (per Judge W. Pryor):

Efraim Diveroli’s story is so outlandish that it has inspired an article in Rolling Stone, a book, and a forthcoming comedy film. See Guy Lawson, How Two Stoner Kids from Miami Beach Became Big-Time Arms Dealers—Until the Pentagon Turned on Them, Rolling Stone, Mar. 31, 2011, at 52; Guy Lawson, Arms and the Dudes: How Three Stoners from Miami Beach Became the Most Unlikely Gunrunners in History (2015); Borys Kit, Jonah Hill to Star in Crime Comedy ‘Arms and the Dudes,’ The Hollywood Reporter (Dec. 3, 2014, 4:56 PM), http://www.hollywoodreporter.com/news/jonah-hill-star-crime-comedy-753760. By age 21, Diveroli started his own company, became an international arms dealer, and won a $298 million contract with the United States Army to provide ammunition to Afghanistan. But his meteoric rise would not last. The contract prohibited Diveroli’s company, AEY, from acquiring ammunition from Chinese manufacturers. When Diveroli learned that his primary supplier obtained its ammunition from China, he and his cohorts concealed the origin of the ammunition and falsely attested that it was from Albania. A grand jury indicted Diveroli, AEY, and his coconspirators on 85 counts of major fraud, wire fraud, and conspiracy to commit fraud. After Diveroli’s attorney advised his client about the charges and estimated that he faced a sentence of 168 to 210 months if convicted, Diveroli pleaded guilty to one count of conspiracy for which the district court sentenced him to 48 months of imprisonment.
Diveroli moved to vacate his sentence, 28 U.S.C. § 2255, on the ground that his attorney miscalculated his potential sentencing exposure, which Diveroli argues was only 70 to 87 months. Diveroli argues that he would have proceeded to trial but for his counsel’s error. The district court denied his motion without an evidentiary hearing. Because the record establishes that Diveroli faced overwhelming evidence of guilt and had no viable defenses, we affirm.

2. If you are interested in the "rarely charged" crime of misprision of a felony, there is a lot to be said about it here (with a lengthy concurrence by Judge Martin). The background:

The misprision charge brought against Brantley stems from tragic events that occurred on June 29, 2010. Brantley was pulled over in a routine traffic stop. Brantley’s boyfriend, convicted felon Dontae Morris, was a passenger in her car. Upon questioning by the police, he emerged from the car and shot and killed two officers. He then fled on foot as Brantley sped away. Within minutes, Brantley spoke with Morris on a cell phone, and thereafter hid the car and exchanged texts with Morris. The traffic stop itself -- including the shootings -- was recorded by the dashboard video camera in a police car. The video was played for the jury.
At trial, the jury ultimately found that Brantley knew about a federal felony (her convicted-felon boyfriend’s possession of the firearm which he used to shoot the officers), did not report that crime to the authorities, and, in the aftermath of the murders, took affirmative steps to conceal Morris’s felony from the authorities.

3. Or if you are really desperate, you can check out my op-ed in the Jamaican Gleaner about the juror misconduct in Buju Banton's case. The conclusion:

US District Judge James S. Moody, rightfully outraged that a juror would disregard his instructions, found Wright guilty of criminal contempt and even ordered her to write a report about the cost of Buju's expensive six-day trial.

Although Wright will never get to fulfil her dream of being a professional juror, she will get to move on with her life. She won't have to do one day in jail. Buju, on the other hand, isn't set to be released from federal prison until 2019. Our system failed him.

The Times, They Are A Changin

That's the Bob Dylan song that Justice Scalia sang to Justice Ginsburg after the same-sex marriage case was decided. I'm not kidding.

Former AUSA, current Broward state judge resigns

The Sun-Sentinel has all of the details:

Broward Circuit Judge Lynn Rosenthal, who was facing a disciplinary hearing over her conduct following her arrest on a DUI charge last year, has resigned effective Oct. 31.

Her decision was confirmed on the same day the Judicial Qualifications Commission (JQC) announced a schedule of hearings in her misconduct case, which are now likely to be canceled.

"She called me and told me she's chosen to resign, effective the end of this month," said Broward Chief Administrative Judge Peter Weinstein. "This gives us enough time to decide who will replace her in her division."

Rosenthal has mostly handled foreclosures since her arrest on May 27, 2014. On that morning, Rosenthal arrived outside the courthouse showing signs of being impaired. She sideswiped a parked patrol car and repeatedly drove into the gate of the judicial parking lot between the courthouse and the Broward Main Jail.

According to police reports, she told investigators that she had taken an accidental overdose of the prescription sleep aid Ambien the night before. A breath test showed she was not under the influence of alcohol, but Rosenthal refused to submit to a blood or urine test that would have indicated whether she was affected by any other drug.

Prosecutors said there was a bottle of Xanax in her car.

During a JQC investigation that followed, Rosenthal admitted that she had recorded a video using her cellphone as she was driving to work. The video, police said, showed her driving erratically on Interstate 595. Rosenthal's husband deleted the video after police had seen it.

The JAABlog broke the story.

Narcos are still cooking

And shipping... here, in coffee (via New Times):

Officers were screening the package when they decided to send it through an x-ray. Something seemed funny, and officers found odd clumps in the coffee grounds. Further testing revealed those clumps were in fact cocaine — 4.1 pounds of it.

The shipment was being sent from Peru to an address in New Jersey.

“We’re extremely proud of our CBP officers and their ability to detect and seize narcotics,” Miami International Airport port director Christopher Maston said in a statement. "They remain dedicated to protecting the American people from dangerous drugs.”

Smugglers often try all sorts of crazy ways to sneak cocaine through customs at the airport. In August, CBP reported it had found 80 pounds of cocaine and heroin hidden in shipments of flowers traveling from Colombia and Ecuador since January 2014. CBP claims it seizes more than 10,000 pounds of drugs daily throughout its operations in the U.S.

Are you guys watching Narcos on Netflix? It's really good.

By the way, if you haven't seen Marc Caputo's daily "Florida Playbook" on Politico, you should check it out. It's fantastic.

SCOTUS changes rules on "line-standers" and tries to improve "link-rot"

Here's the statement by the Court. SCOTUSBlog has more:

The Supreme Court, changing some of its procedures with Monday’s opening of a new Term, announced that lawyers who plan to attend oral argument sessions can no longer hire “line standers” to hold their places. This is now a do-it-yourself opportunity, the Court said in a statement outlining several changes.

Long lines usually form outside the Court building only when a high-profile case is scheduled, with heavy demand for the limited seating in the courtroom. The new policy apparently does not affect public lines. The Court did not explain the new policy for attorneys.

Other changes announced on Monday included making revisions to a published opinion of the Court more visible and a new effort to keep Internet links that appear within Court opinions from disappearing — what the Court indelicately calls “link rot.”

First Monday in October

The Justices are back to work. I wonder if they had Sunday night blues...

Anyway, here's the first order of the Term. Nothing really interesting except that the Court denied cert in an important insider trading case (More on that here).

The USA Today has a good article previewing the Term:

The Supreme Court embarks on a new term Monday that would make Yogi Berra proud: It truly is déjà vu all over again.

The justices will rule on affirmative action for the third time in four years. They will rule on public employee union fees for the third time in five years. They will deliver verdicts on class-action lawsuits and death penalty appeals, as they do virtually every year.

Before the term is out next June, they likely will consider the Affordable Care Act's so-called "contraceptive mandate" for the second time in three years and update what they meant a generation ago in ruling that states could not place an "undue burden" on women seeking abortions.

"It's kind of a term of sequels," says John Elwood, an appellate lawyer who argues frequently before the court. "There are many cases or questions presented from past terms ... that weren't decided the first time, and they're back now to be answered, hopefully, this upcoming term."

Other issues that could reach the court this term or next include President Obama's effort to shield millions of illegal immigrants from deportation, challenges to voter-identification laws and other restrictions, and efforts by merchants such as bakers and florists to turn down same-sex weddings.

So far, the cases granted for oral argument this fall point the court led by Chief Justice John Roberts back in a conservative direction after a year heralded by liberals — for the landmark gay marriage and Obamacare rulings as well as others on housing and employment discrimination, judicial fundraising, and the way legislative and congressional districts are drawn.

Interesting interstate commerce case before the Supreme Court

Cert was granted in Taylor v. United States — Whether, in a case under the Hobbs Act, the government must prove that robbery of a drug dealer does actually affect interstate commerce.

From Courthouse News:

David Anthony Taylor was indicted on July 26, 2012, on multiple charges of affecting interstate commerce when he robbed a drug dealer, identified in court documents as Whitney Lynch, of marijuana, drug proceeds and a cellphone in August 2009.
At the time, the documents said, Taylor was a member of the "Southwest Goonz," a gang that specialized in robbing drug dealers, who in knew both kept drugs and drug proceeds in their homes, and, because of their activities, would be reluctant to report the robberies to the police.
Taylor's first trial resulted in a hung jury. But a second jury convicted him on July 25, 2013, and he was sentenced to 28 years in prison, three years supervised release and a $1,000 fine.
Taylor appealed, contending both that the government failed to introduce sufficient evidence to establish that his robberies affected interstate commerce, and that the district court erred by preventing him from showing that the particular drugs he tried to steal did not affect interstate commerce.
But the Fourth Circuit held that because drug dealing in the aggregate necessarily affects interstate commerce, the government was simply required to prove that Taylor deplete or attempted to deplete the assets of such an operation.
It also held that "sufficient evidence was adduced at trial for a rational jury to find that Whorley was a drug dealer and that Taylor depleted or attempted to deplete his assets during the August 27 robbery."
"This is not to imply that the reach of the Hobbs Act is without limits," the Fourth Circuit said. "All robberies are disruptive, but not every disruption is an obstruction of commerce."
The court noted that the Sixth Circuit has held that the jurisdictional element of the Hobbs Act was not satisfied when the defendant stood convicted of robbing "private citizens in a private residence" of money, some of which just happened to "belong to a restaurant doing business in interstate commerce."

13 new cert grants

The Order is here. More to follow on the cases shortly.

Meantime, there is some sentencing reform bouncing around Congress. Let's see what happens. This will be a minor, but important and good, step forward. We still need the judges to step up... From the NY Times:

A long-awaited bipartisan proposal to cut mandatory prison sentences for nonviolent offenders and promote more early release from federal prisons is scheduled to be disclosed Thursday by an influential group of senators who hope to build on backing from conservatives, progressives and the White House.

The comprehensive plan, which has the crucial support of Senator Charles E. Grassley, the Iowa Republican who heads the Judiciary Committee, is the product of intense and difficult negotiations between Republicans and Democrats who hope to reduce the financial and societal costs of mass incarceration that have hit minority communities particularly hard.

The push has benefited from an unusual convergence of interests in an otherwise polarized Washington and has become a singular issue that usually warring groups have rallied around. Progressive advocacy groups have embraced the possibility of less jail time and better preparation for offenders when they are released; conservatives have championed the potential savings in reducing prison populations and spending on the strained criminal justice system.

According to those familiar with the still-secret agreement, the legislation proposes an extensive set of changes in federal sentencing requirements. Those changes include a reduction in mandatory minimum sentencing to five years from 10 for qualified cases; a reduction in automatic additional penalties for those with prior drug felonies; and more discretion for judges in assessing criminal history.

The legislation would also ban solitary confinement for juveniles in nearly all cases, and allow those sentenced as juveniles to seek a reduction in sentencing after 20 years. Many of the new rules could be applied retroactively to people now serving time.

Not sure the new laws will help the creative drug dealers here:

Investigators seized a sweet stash that looked like it was ready to be stuffed into a piñata earlier this summer, but drug testing proved it was more than nine pounds of methamphetamine, disguised to look like candy.

On Wednesday, Jorge Maldonado, 24, pleaded guilty to one count of conspiring to distribute the drug in Broward County. The charge carries a maximum punishment of life in federal prison.

Maldonado, of Okeechobee, was arrested July 7 in Lauderhill and admitted he was being paid $2,000 to deliver the methamphetamine to South Florida. Pieces of the drug were individually packaged in brightly-colored candy wrappers labeled with Spanish words.

Investigators have issued warnings in recent months about street drugs that have been disguised as hard candy. They say it is particularly dangerous because children and adults could unwittingly consume the drug.

A Bradenton man, Jesus Castellano, 53, who was arrested on related charges, is scheduled to plead guilty next week in federal court in Tampa. Authorities seized about another 19 pounds of the "meth candy" from his home in July.

Weeds or native plants?

Judge Posner discusses and uses pictures!

Good times.

It's an 8th Amendment Term from SCOTUS. From Rory Little at SCOTUSblog:

Last June, the Supreme Court’s Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer’s surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now “believe it highly likely that the death penalty violates the Eighth Amendment.” Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly “would ask that counsel also brief whether” longstanding Eighth Amendment precedents, “beginning with Trop [v. Dulles (1958)], should be overruled.” Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as “guerilla war against the death penalty,” while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to “being burned alive.” Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s “cruel and unusual punishment” clause.

Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty. All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2). One can expect that the smoldering embers of the Glossip debate will be quickly reignited. This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).

...

After the Justices’ “long Conference” on September 28, at which they will address hundreds of cert. petitions that have piled up since the summer recess began, the Court will announce review in a number of new cases of great import. Some may well divert attention from what appears to be an unusual focus on Eighth Amendment cases and questions. But the granting and argument of five Eighth Amendment cases to open the Supreme Court’s 2015 Term signals, I think, the deep cultural (as well as economic and federalism) concerns that Americans in general seem to have regarding capital punishment. In at least some of these cases – with that of the Carr brothers being the best example – there seems to be no doubt about guilt. The horrific character of multiple rapes and murders is undeniable. Yet in Carr, while affirming the defendants’ guilt, the Kansas Supreme Court nonetheless found reason to vacate their death sentences. Such cases thus starkly showcase the divergent views on the Eighth Amendment – and a nine-Justice Court is not different in this regard from much of America. So stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices’ law clerks were born.

And locally, former TD Banker Frank Spinosa is going to plead guilty.

Supermoon Sunday

It's more exciting than watching the Dolphins.  Yikes.  SO bad.

ICYMI, Friday night was the big Federal Bar shindig.

The Clerk, Steve Larimore, won the Ned Davis award.  It's a really important honor and I'm glad we remember Judge Davis and his wife Pat every year.  Congrats to Steve!

We also welcome the new President of the organization, Oliver Ruiz, and wish outgoing President Candace Duff well.  She did a great job and the organization is in good hands with Oliver.

Finally, no jail for this former secret service agent who used counterfeit money.  From Paula McMahon:

Cynthia LaCroix, 51, former office administrator for the Secret Service's West Palm Beach branch, eventually admitted she had been stealing forged bills that were supposed to be burned or shredded. Though the agency is best known for protecting the president and other dignitaries, it also investigates financial crimes, fraud and counterfeiting.

Earlier this year, LaCroix pleaded guilty to possessing counterfeit notes and lying to federal investigators when they questioned her.

Authorities said LaCroix spent the phony money at local malls and pocketed authentic change. Federal prosecutors recommended she serve 12 months in federal prison.

But Friday, LaCroix's previously clean record and her tragic motive convinced U.S. District Judge Kenneth Marra to sentence her to six months of house arrest and two years of probation. He said imprisonment was unnecessary.

Sobbing as she apologized profusely in federal court in West Palm Beach on Friday afternoon, LaCroix said she stole the money so she could help her son, who struggled with drug addiction for years before dying from a drug overdose. She is now raising his two young children.

"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: