Congratulations to Judge Robert Scola for being named to the Defender Services Committee.

Congratulations to Judge Robert Scola for being named to the Defender Services Committee.

Defender Services Committee
Chief Justice John G. Roberts, Jr. appointed the following new members to the Defender Services Committee.  Their terms begin October 1, 2017.

New Members:
Hon. Micaela Alvarez (5th Circuit representative - TX-S)
Hon. Judith Ellen Levy (6th Circuit representative - MI-E)
Hon. Robert N. Scola, Jr. (11th Circuit representative - FL-S)
Hon. Ketanji Brown Jackson (DC Circuit representative - DC)

There is another Miami connection to the committee -- Judge Brown Jackson is a Miami native and went to Palmetto High.

11th Circuit vs. then-Judge Gorsuch

The 11th Circuit, per Judge Dubina, issued an opinion today disagreeing with then-Judge Gorsuch in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). The Gorsuch opinion was defendant friendly on the issue of mens rea. Unsurprisingly, the 11th Circuit opinion is not:

As Rehaif points out, the strongest argument in favor of requiring proof of mens rea with respect to the status element is laid out in then-Judge, now Justice Gorsuch’s concurrence in United States v. Games-Perez. 667 F.3d 1136, 1142 (10th Cir. 2012) (Gorsuch, J., concurring in judgment). Acknowledging that prior precedent dictated that the mens rea requirement does not apply to the status element, then-Judge Gorsuch concluded that the plain language of the statute compelled the opposite conclusion. Id. (“[Prior precedent] reads the word “knowingly” as leapfrogging over the very first § 922(g) element and touching down only at the second. This interpretation defies linguistic sense—and not a little grammatical gravity.”). In drawing such a conclusion, then-Judge Gorsuch noted that, “Congress gave us three elements in a particular order. And it makes no sense to read the word “knowingly” as so modest that it might blush in the face of the very first element only to regain its composure and reappear at the second.” Id. at 1144. He also pointed out that “[t]he Supreme Court has long held that courts should presum[e] a mens rea requirement attaches to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at 1145 (quotations omitted) (alteration in original).
While then-Judge Gorsuch opined that § 922(g) “is a perfectly clear law as it is written, plain in its terms, straightforward in its application,” id., there is evidence to suggest otherwise. The fact that § 924(a)(2) only punishes defendants who “knowingly violate” § 922(g) begs the question “what does it mean to knowingly violate the statute?” Does the statute proscribe merely conduct, or both conduct and the surrounding circumstances that make the conduct a federal crime? See United States v. Langley, 62 F.3d 602, 613 (4th Cir. 1995) (en banc) (Phillips, J., concurring in part and dissenting in part) cert. denied, 516 U.S. 1083, 116 S. Ct. 797 (1996). While the defendant’s status might be inextricably tied to the violation, the actual violation occurs when the defendant knowingly possesses a firearm.

Jeff Sessions in Miami

Here's AG Jeff Sessions' speech in Miami.

Interesting amicus briefs on cell site case (Carpenter) before SCOTUS

The Supreme Court will hear the cell site case (Carpenter) sometime this winter.  Amicus briefs in support of Carpenter were filed yesterday.  Here is one by EFF and NACDL,* among others.  The Cato Institute brief is also worth a read.

Perhaps the most interesting brief is this one filed by "tech companies."  Although they don't take a position on this specific case, which argues that the third party doctrine is no longer workable in this modern era

The Internet and Internet-connected devices have revolutionized nearly every facet of our lives. Ameri-cans rely daily on services made possible by networked technologies—from email, smartphones, and web-based social media the Court has already encountered to new and evolving products and applications in the “Internet of Things,” such as smart-home devices that can be used to control room temperature and lighting, order groceries, and perform a multitude of other tasks. These devices and services not only confer immense value on users and society, but in many instances are considered practical necessities of modern life.

Using these technologies often involves transmit-ting highly personal information through the networks and applications of digital service providers. That in-cludes transmission of metadata—
i.e., data about da-ta—generated by automated processes that are part of the background operation of digital devices and applica-tions. Such transmissions are inherent features of how the Internet and networked devices work. Short of forgoing all use of digital technologies, they are una-voidable. And this transmission of data will only grow as digital technologies continue to develop and become more integrated into our lives. Because the data that is transmitted can reveal a wealth of detail about people’s personal lives, however, users of digital technologies reasonably expect to retain significant privacy in that data, notwithstanding that technology companies may use or share the data in various ways to provide and improve their services for their customers. Fourth Amendment doctrine must adapt to this new reality. Although amici do not take a position on the outcome of this case, they believe the Court should refine the application of certain Fourth Amendment doctrines to ensure that the law realistically engages with Internet-based technologies and with people’s ex-pectations of privacy in their digital data. Doing so would reflect this Court’s consistent recognition that Fourth Amendment protections, governed as they are by reasonable expectations of privacy, must respond to changes in technology that implicate privacy. Indeed, in declining to extend the search-incident-to-arrest ex-ception to searches of cell phones in Riley v. California, 134 S. Ct. 2473 (2014), this Court has already signaled that digital information deserves special consideration, largely because Internet-connected devices such as smartphones “are not just another technological con-venience,” but are necessary to participate in the mod-ern world, and “hold for many Americans ‘the privacies of life.’”
Id.at 2494-2495.

In the digital context, inflexible doctrines that cat-egorically foreclose any protection for data automatical-ly generated by ordinary digital activity—or that will be generated by the yet-to-be-conceived technologies of tomorrow—are not sustainable. In particular, the analog-era notion that transmission of data to a third party is necessarily “voluntary” conduct that precludes Fourth Amendment protection should not apply in a world where devices and applications constantly transmit data to third parties by dint of their mere op-eration. No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life. Similarly, the fact that certain digitally transmitted information might have been traditionally classified as “non-content” should not unconditionally bar Fourth Amendment protection, as this data can of-ten be highly revealing of the intimate details of a us-er’s life. Rather than adhere to rigid Fourth Amendment “on/off” switches developed in the analog context, courts should take a more flexible approach that realis-tically reflects the privacy people expect in today’s dig-ital environment. Consistent with the general reasona-ble-expectation-of-privacy inquiry, courts should focus on the sensitivity of the data at issue and the circumstances of its transmission to third parties. That approach would better reflect the realities of today’s digital technologies and accommodate the technologies of the future.

*Full disclosure -- I am counsel for NACDL in this brief.

SDFLA seeks two Magistrate Judges

The Southern District of Florida is seeking two Magistrate Judges -- one for West Palm Beach and one for Miami.  Here's the court announcement:

The U.S. District Court for the Southern District of Florida anticipates appointing two full-time Magistrate Judges in the coming months, one for the Miami Division and one for the West Palm Beach Division.  A full public notice for the Miami position is posted on the Courts Internet website at: www.flsd.uscourts.gov.  Application forms are also available on the website. The application deadline for the Miami position is September 11, 2017 at 5:00 p.m.  Final approval to fill the West Palm Beach position is pending at this time.  Once approval is received, a full public notice will be posted on the website and the application deadline for that position will be set.  Those interested in the West Palm Beach position should continue to check the Court's website for updates.    
In addition, the Court is seeking comment on the reappointment of Magistrate Judge Lurana S. Snow in Fort Lauderdale and Magistrate Judge Jonathan Goodman in Miami.  Information regarding the reappointment process and how to submit comments may found on the Court's website:  www.flsd.uscourts.gov.  The deadline for submitting comments is September 11, 2017 at 5:00 p.m.
Interested persons should consult the Court's website for further details.  The Clerk of Court may also be contacted for additional information or forms at (305) 523-5001 or Court-Admin_flsd@flsd.uscourts.gov.

11th Circuit, per Judge Jordan, quotes Carly Rae Jepsen

The 11th Circuit, in an opinion by Judge Jordan, quoted Carly Rae Jepsen's "Call Me Maybe":

According to the district court, no reasonable jury could find that Ms.Schweitzer partially revoked her consent to receive automated calls on October 13 because she did not specify what “the morning” and “during the work day” meant. A jury could certainly find that Ms. Schweitzer—like the protagonist of a recent hit song—was too equivocal, cf. Carly Rae Jepsen, Call Me Maybe, on Curiosity (Universal Music Canada 2012), but we do not think that the lack of specificity is fatal to her claim of partial revocation.

Judge Rosenbaum's recent GoT's reference might be a little hipper, but I love that Judge Jordan listens to Call Me Maybe!

hat tip:  E.S.

Jeff Sessions is pushing for "Hang 'Um High" Henry Hudson to be on Sentencing Commission

Attorney General Jeff Sessions is pushing for "Hang 'Um High" Henry Hudson to be on the Sentencing Commission. I kid you not. Professor Berman has more at his blog here. And this, from the WSJ article:

Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson to an independent, bipartisan panel that issues sentencing guidelines. Mr. Sessions’ recommendation for one of three openings on the U.S. Sentencing Commission, confirmed by people familiar with the process, reflects the Justice Department’s broader crackdown on violent crime, including the reversal of several Obama -era policies.

The department is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders. In its annual report to the commission, the department asked it to preserve the long, mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

President Donald Trump, who campaigned on a promise to “restore law and order,” has the authority but is under no requirement to fill two Republican vacancies and one Democratic spot on the seven-seat commission.

Judge Hudson, who has acknowledged his colorful nickname, was a candidate for FBI director earlier this year. He is best known for sending pro-football quarterback Michael Vick to prison in 2007 for running a dogfighting ring and for finding unconstitutional a key provision of the Affordable Care Act in 2010.

“I’m excited about the opportunity to serve on the commission,” Judge Hudson, who serves in the U.S. District Court in Richmond, Va., said in a telephone interview Thursday. “I’d like to make sure the guidelines are fair and consider every possible factor in a case.”

Mr. Hudson would be the first new commission member tapped by Mr. Trump, who has reappointed two members previously nominated by former President Barack Obama. A White House official declined to discuss Mr. Hudson’s prospects, but said the administration is committed to filling all federal vacancies....

Mr. Hudson would be expected to shake up the low-profile but powerful panel, which has produced research on the prison population, recidivism and sentencing that advocates have cited in pressing for an overhaul of the criminal justice system.

In its most consequential decision in recent years, the commission in 2014 rolled back penalties for most federal drug offenses, allowing more than 30,000 inmates to seek reduced sentences and helping to trim the federal prison population for the first time in decades. That trend is expected to reverse under Mr. Sessions, a former U.S. attorney and senator from Alabama. After a string of major overhauls of Obama administration policies that sought to curb potential abuses by police and prosecutors Mr. Sessions is now seeking to make his mark on the sentencing commission.

“That is the place where the biggest sentencing reforms have been made in Washington, in that nothing the White House or Congress has done comes close,” said Kevin Ring, president of Families Against Mandatory Minimums, which favors lighter sentencing. “This little agency is a big deal and Sessions wants to exercise his influence, which is shaping up into a fight.”

Among Mr. Sessions’ recommendations is a proposal that the Sentencing Commission reduce the quantity of fentanyl, an opioid, that triggers a sentence of 10 to 16 months for possession with intent to sell. Stiffer penalties weren’t one of a slate of recent proposals made by the president’s task force on opioids, which included expanding treatment through the Medicaid program....

Mr. Hudson declined to comment on his own sentencing of some defendants to decadeslong mandatory-minimum sentences. “I’m anxious to hear the debate and hear everyone’s viewpoint,” he said. “I won’t come to the sentencing commission with any preconceived notions.”

In a 2007 memoir titled “Quest for Justice,” Mr. Hudson recalled that police in Arlington, Va., wore campaign buttons that said “I voted for “Hang ’Em High Henry” during his re-election campaign as a state prosecutor in the early 1980s. “I didn’t reject that nickname, nor did I solicit it,” he said Thursday. “My record as a judge speaks for itself.”

As a state prosecutor in liberal-leaning northern Virginia, Mr. Hudson shut down adult bookstores and massage parlors. That led to his chairmanship of former President Ronald Reagan’s national commission on pornography, which linked porn to violence. He was director of the U.S. Marshals Service during the 1992 deadly siege at Ruby Ridge, Idaho.

He also stirred controversy for prosecuting a mentally disabled man for the murder of a woman in 1984. David Vasquez served five years in prison before DNA and other evidence exonerated him. “I certainly wish him the best and regret what happened,” Mr. Hudson wrote in his memoir, saying he remained convinced of his involvement in the murder. “However, I offer no apologies.”

Death of AUSA Beranton J. Whisenant Jr. found to be a suicide

The death of AUSA Beranton J. Whisenant Jr. was found to be a suicide. Very sad.

“In defending this nation against the threat of terrorism it is neither necessary nor proper for our government to abandon the bedrock principles upon which this nation was founded. All that is sacred in our national life is secured by the promise that this is a nation of laws and not of men,” the defense wrote. “Through its illegal conduct, the government has forfeited its right to prosecute Mr. Hubbard … [and he] respectfully requests that this court dismiss the indictment against him for the government’s outrageous conduct.”

That was AFPDs Vanessa Chen and Anthony Natale in their motion to dismiss terrorism charges for outrageous government conduct. Paula McMahon is on it here:

Though many of the details have been shielded from public view at the request of prosecutors, several sources told the Sun Sentinel that the informant in question is Mohammed Agbareia, 51, of Palm Beach County. Agbareia is a convicted fraudster who was arrested in June on new federal fraud charges.
***
Agbareia was convicted of operating a “stranded traveler” fraud in 2006 for repeatedly tricking people into sending him money after claiming he lost his wallet or tickets. He pleaded guilty, got a break on his punishment and was released early from federal prison in late 2006 after serving about half of a two-year term.

Prosecutors told a judge earlier this year that they believe Agbareia went back to committing fraud very soon after he was released from prison — and while he was providing undercover help to the FBI on the Hubbard case.

Agbareia, a Palestinian citizen from Israel who has no legal immigration status in the U.S., admitted to FBI agents on several occasions that he was still committing crimes and continued doing so “despite numerous warnings to cease,” prosecutors said in court in June.

The FBI called him a “national security asset” and praised his “usefulness as a provider of intelligence to the FBI” and work as an “informer” in court records filed in 2009.

The most recent criminal charges against Agbareia allege that he resumed his “stranded traveler” fraud in 2007 and continued it until the day before he was arrested on June 21, prosecutors told a judge after his arrest.

Agbareia is jailed and has pleaded not guilty to six wire fraud charges spanning the period from 2007 to 2017. Investigators said he preyed on and defrauded Muslim people, mosques and Islamic groups on at least 200 occasions — involving about $300,000 since 2011. The fraud charges carry a maximum penalty of 20 years in federal prison.

Does this news about the SDNY's potential U.S. Attorney say anything about SDFLA?

Does this news about the SDNY's potential U.S. Attorney say anything about SDFLA?

According to Buzzfeed, Rudy Giuliani's law partner is being considered for U.S. Attorney for the Southern District of New York:

The White House is considering Geoffrey Berman, a New Jersey attorney and one of Rudolph Giuliani’s law partners, to lead the US attorney’s office in Manhattan — one of the most high-profile federal law enforcement jobs in the country.
Berman’s name was included as part of a package of proposed candidates for New York judicial and US attorney vacancies sent by the White House in mid-July to New York’s Democratic senators, according to a source familiar with the process. The list offers an early glimpse at the Trump administration’s strategy for filling vacancies in states with two Democratic senators.
Berman, who did not immediately return a request for comment, was the only name that the White House proposed for US attorney in the Southern District of New York. In contrast, the administration sent multiple names for other positions, including for federal judgeships and US attorney for the Eastern District of New York. A second source familiar with the process said that the list was intended to spur a dialogue with New York’s senators — Senate Minority Leader Chuck Schumer and Sen. Kirsten Gillibrand — about a compromise package of nominees.
The White House historically defers to home state senators to recommend US attorney candidates, but there can be more tension when there’s a difference in party. Senators can hold up judicial and US attorney nominees they don’t approve of via a system known as the “blue slip process,” although it’s rarely used for US attorneys. The majority of US attorney nominees announced by the Trump administration so far are from states with two Republican senators.
Negotiating a package of New York nominees would spare the White House a fight with Schumer, who as minority leader has repeatedly sparred with President Trump and was critical of his decision to fire former FBI director James Comey.
***
Berman, who co-leads the New Jersey office of the law firm Greenberg Traurig, would bring Justice Department experience to the job, having served as an assistant US attorney in the Southern District of New York from 1990 to 1994, according to his law firm bio online. In May, multiple news outlets reported that he was under consideration for the New Jersey US attorney position. The Philadelphia Inquirer reported at the time that New Jersey Gov. Chris Christie, who previously served as US attorney, was backing a different lawyer, Craig Carpenito, for the position; no nominee has been announced yet.

If Rudy is promoting his law partner Berman, perhaps he will also be pushing his good friend Jon Sale (one of the finalists) for this District. Sale would be an excellent choice. He's smart, well-liked, and has worked on both sides of the v.

Judge William Pryor on Justice Thomas

Judge William Pryor, a Supreme Court shortlister, recently wrote an essay In the Yale Law Journal on Justice Clarence Thomas and originalism. Here's the conclusion paragraph:

By leading, joining, and occasionally challenging Justice Scalia, Justice Thomas, over the last quarter of a century, has accomplished what no original- ist by himself could: through principled adjudication, proving that the legiti- macy of originalism can be an objective methodology for adjudication. His con- tributions have increased respect for originalism exponentially and made its vocabulary a staple of constitutional adjudication. And for those contributions, all originalists owe him a debt of gratitude.

---

Also, a reminder for those who knew Richard Strafer, his service will be this Sunday, August 6, 10am at Mt. Nebo Kendall, 5900 SW 77th Avenue, Miami, FL 33143

Kevin Newsom confirmed to 11th Circuit

Congrats to my law school classmate Kevin Newsom on being confirmed to the 11th Circuit. The vote was 66-31, which is pretty incredible in this environment. He's very smart and well-qualified.

19 Justices?

19 Justices?  That's what Judge Posner is calling for:

"Mediocre and highly politicized," was the opinion the 78-year-old jurist gave of the justices who sit in D.C. during a recent talk at the University of Chicago.

"We have a very crappy judicial system."

Posner — the most highly cited legal scholar of the 20th century, according to the Journal of Legal Studies — repeated his complaint that politicians are more concerned with appointing "tokens" such as women or Hispanic justices, and with would-be justices' politics than they are with merit.

"If you had 19 members you would inevitably have more diversity," he told Prof. Luigi Zingales during the talk. Posner, who was appointed by President Ronald Reagan, said no president since Herbert Hoover has appointed a Supreme Court justice who "was not in either his personal or his political interest."

"The modern presidents don't think that way, but if the Supreme Court was much larger, they might say, 'Well, OK ... we have 19 justices, 12 of them are highly politicized, but we have these extra 7 seats, so we'll appoint them on the basis of quality,' and that would make a big difference."

Meantime, President Trump may be losing at a bunch of things, but he is winning on judges:

The White House has announced more than two dozen lower court nominees to date, and the Senate Judiciary Committee has been holding hearings and sending nominees to the full Senate for a vote at a regular clip.

Just Monday, after the news broke that White House communications director Anthony Scaramucci was ousted on the 11th day of his tenure, the Senate took a key procedural vote on a federal appeals court nominee out of Alabama, Kevin Newsom. On July 20 — as the White House dealt with fallout from an interview published the night before in which President Trump criticized Attorney General Jeff Sessions — the Senate confirmed Kentucky lawyer John Bush to the US Court of Appeals for the Sixth Circuit, notwithstanding a coordinated, well-funded opposition campaign by groups on the left.

“It’s just been a win on all fronts,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, which supports conservative court nominees.

The administration’s success with judges is about more than the fact that Republicans control the Senate. Lower courts remain mostly of regional interest, despite the fact that federal judges have lifetime tenure and issue rulings that can affect the entire country. Senators defer to their colleagues’ preferred local picks. There is little incentive to interfere, even if, as was true with John Bush, Republicans have concerns about a nominee’s record.

There’s also the fact that Republicans historically have been more organized on judges than Democrats, said David Fontana, a professor at George Washington University Law School who follows judicial nominations. There are numerous interest groups and political factions around issues like health care, he said, but there is a tight-knit community of conservative lawyers who foster and promote court nominees during Republican administrations.

Criminal Complaint against Imran Awan

Read the criminal complaint against Imran Awan here.  This is Debbie Wasserman Schultz's former aide, who  is charged with bank fraud.  The complaint is pretty vanilla -- he is accused of saying a rental property as a primary residence to get a loan.  Many are speculating that this case is just a place-holder for a bigger (and more sexy) case to follow. 

"Little’s logic lacks luster."

"Little’s logic lacks luster."  We see you, Chief Judge Carnes.  We see you.

Magistrate Judge Selection Panel

There is a new Magistrate Judge Selection Panel, to make a recommendation as to reappointment of Magistrate Judge Jonathan Goodman and the upcoming vacancy due to the retirement of Magistrate Judge William Turnoff.  Here is the committee:

Chair: Thomas E. Scott, Jr., Esq.
Members: Jerry Blair (non-attorney)
Raoul Cantero, III, Esq.
Laura Maria González-Marqués, Esq.
Markenzy Lapointe, Esq.
Tiffani Lee, Esq.
Abigail Price-Williams, Esq.
Nikki Lewis Simon, Esq.
H. T. Smith, Esq.
Rodolfo Sorondo, Esq.
Ryan Stumphauzer, Esq.
Dr. Jose Szapocznik (non-attorney)

Two wonderful magistrates.  Judge Turnoff will be missed... more on that to follow.

Mary Barzee Flores is running for Congress

Mary Barzee Flores is running for Congress. Ileana's seat. Mary is a former federal defender and was nominated by Obama to be a federal district judge. But Marco Rubio blocked her by not signing the blue slip. So she is fighting back. From her email this morning:

After a few years serving clients in private practice, I again answered the call to public service when President Obama nominated me to serve as a Federal District Court Judge for the Southern District of Florida. Although I enjoyed strong support from Democrats and Republicans, Senator Marco Rubio blocked my nomination. He complained about my support of progressive organizations like the ACLU and EMILY’s List.
Marco Rubio disagrees with my political views. I disagree with his.
So I can understand why Marco Rubio would not want me on the federal bench. He won’t want me in Congress either.
Petty partisan politics prevented me -- like Judge Merrick Garland and so many other Obama federal court nominees -- from fulfilling President Obama's call to public service. But I’m persistent and I don’t give up easily. I remain committed to serving this community and this country.

News & Notes

1. Richard Strafer's memorial service will be held on August 6 at 10am at Kendall Mt. Nebo, 5900 SW 77th Avenue. Miami, FL 33143.

2. We filed an emergency petition in the Supreme Court for former Panamanian President Ricardo Martinelli. Jay Weaver covers it here:

Attorneys for former Panamanian President Ricardo Martinelli, who is being detained in Miami on an extradition request to his homeland, filed an emergency petition with the U.S. Supreme Court on Monday that asserts his constitutional rights have been violated because his bid for bond was denied.

Martinelli’s legal team argued that federal courts nationwide have “misconstrued” a 114-year-old Supreme Court decision “as having erected a heavy presumption against bail in such [extradition] cases.”

“The belief that [this decision] imposed an unlawful presumption has prevailed [in extradition cases] for so long that it is now binding across the country,” Miami attorneys David O. Markus and Ricardo Bascuas wrote in Martinelli’s emergency petition for a writ of habeas corpus. “Only this court can resolve the confusion at this point.”

Markus and Bascuas, who were added to Martinelli’s legal team led by attorney Marcos Jimenez, said the U.S. Supreme Court was the former president’s only recourse because bond denials cannot be appealed in extradition cases in the federal district or appeals courts.

3. David Lat is blogging about Katherine Magbanua's case. Magbanua is represented by Chris DeCoste and Tara Kawass. Full disclosure, we represent Charlie Adelson.

4.  SCOTUS protestors get a taste of jail.  Via WP:

Five protesters who disrupted a session of the U.S. Supreme Court by shouting disapproval of its rulings on campaign finance law were sentenced to one or two weekends in prison Monday after losing a bid to overturn a 1949 law restricting public protest at the court.

U.S. prosecutors had asked U.S. District Judge Christopher R. “Casey” Cooper in Washington to order 10-day jail sentences for the defendants, members of an organization called 99Rise. They had stood and spoken one-by-one just after the court was gaveled into session April 1, 2015, about a year after the justices had struck down overall limits on campaign contributions.

RIP Richard Strafer

RIP Richard Strafer.

What a tragedy. Richard was a friend. A really great guy. Brilliant lawyer. He could spot a great issue and crank out a 50-page perfect brief faster than anyone I knew. Here's the DBR obit:

Miami criminal appellate lawyer G. Richard Strafer died Friday after contracting a mystery infection on a European cruise and letting his colleagues know before going into a coma in Britain. He was 66.

Strafer was known for his compelling appellate writing, including a 2012 petition that persuaded the U.S. Supreme Court to hear arguments in the Kaley v. United States on the constitutionality of pretrial asset freezes. The court later found them legal.

Strafer had his own firm for many years and last summer became of counsel at Black, Srebnick, Kornspan & Stumpf.

"He is one of the finest legal writers in this country," Black Srebnick senior partner Roy Black said while Strafer was hospitalized. "He has a brilliant and incisive mind and understands and resolves thorny legal problems better than anyone I know."

Strafer fell ill last month after contracting an infection on a Viking Cruises trip during a vacation with his husband, Jon Rick. Strafer was quarantined in his cabin, given antibiotics by the ship's doctor and taken to a hospital after the cruise ended.

At the hospital outside London, Strafer suffered cardiac arrest. That night, colleagues said his medical records show the hospital staff removed him from oxygen for nearly 10 minutes, and he lapsed into a vegetative state shortly afterward around June 22.

About a week later, he was flown to Baptist Hospital in Miami, where he was visited by his husband, 26-year-old daughter Jordan, friends, colleagues and his two dogs. Strafer trained the dogs as therapy pets so they could cheer up hospital patients, particularly children. In his final days, the dogs were allowed to climb onto his hospital bed and snuggle in his arms.

Under conditions of his living will, Strafer was removed from life support Monday. The source of the infection has not been determined.

And here is the Herald obit:

Richard Strafer, a brilliant, behind-the-scenes appellate lawyer at the marquee criminal-defense firm in Miami, has been a fanatical runner and bicyclist for years. He competed in two World Championship Duathlons, finishing eighth in his age group in Spain in 2011 and 22nd in Hungary in 2007.

So when he set off on a leisurely European cruise in early June, his colleagues and friends thought it was a tad ironic.

Days after departing from Stockholm, Sweden, on a cruise to Norway, the 66-year-old Strafer caught a chest cold. It soon flared up to a 104-degree fever and pneumonia.

By mid-June, when the ship sailed into Greenwich, England, Strafer had already been under medical supervision for the latter half of the cruise. After being transferred to an English hospital, doctors gave him antibiotics for a worsening lung infection that they could not diagnose, but the medication proved ineffective. As his lungs deteriorated, Strafer went into cardiac arrest that cut off oxygen to his brain. Within a week, he slipped into a coma.

Strafer, considered to possess one of the sharpest legal minds in South Florida, never awoke from it. After being flown in a private air ambulance to Miami in early July, he was taken to Baptist Hospital, where a stream of family and friends visited his bedside. Baptist doctors concluded his coma was irreversible.

***

“Everyone is heartbroken,” said attorney Scott Kornspan, managing partner of Black, Srebnick, Kornspan & Stumpf, where Strafer worked for more than 15 years. “How does this happen on a cruise line to a perfectly healthy man? We're all in shock and dumbfounded about what happened.”

Kornspan said he communicated with Strafer on June 17 just after he was transferred from the Viking Cruises ship to the English hospital. Strafer expressed alarm over his prognosis after doctors immediately told him in the hospital’s ICU that if he had arrived three hours later he would have died. They also told him that because of the seriousness of his condition, he should contact next of kin and a spiritual adviser.

#SeersuckerDay at the USSC meeting

#SeersuckerDay at the USSC meeting in DC. That's Judge Bill Pryor and Judge Charles Breyer.

Judges Pryor and Breyer start new USSC tradition! #SeersuckerDay pic.twitter.com/GY2Xte4TzS

— SentencingCommission (@TheUSSCgov) July 19, 2017

Judge Rosenbaum starts her opinion with a GoT quote

Judge Rosenbaum starts her opinion with a Game of Thrones quote.  And it's Tyrion Lannister, Hand of Daenerys Targaryen.  Looks like she was watching the premier with the rest of us on Sunday night.  Here's the intro:

“A wise man once said a true history of the world is a history of great conversations in elegant rooms.”1 Whether or not that may be accurate, a true history of the United States would be incomplete without a history of great political conversations, wherever they might have occurred. And great political conversations could not exist in the absence of the First Amendment. So the First Amendment generally prohibits government retaliation against a person for exercising his rights to free speech and association, including supporting the political party and candidates of his choice.

1. Tyrion Lannister, speaking of himself. “Oathbreaker,” Game of Thrones (2016), as quoted by http://m.imdb.com/title/tt4131606/quotes?item=qt2914807 (last visited June 20, 2017).

Judge Jordan concurs.  Instead of recent pop culture, he cites Shakespeare:

If a jury were to find that Chief Gomez did not have the City Manager’s blessing, then maybe everything that took place after the delivery of the letter to Mr. Rodriguez was just “sound and fury, [s]ignifying nothing.” William Shakespeare, The Tragedy of McBeth, Act V, scene 5 (1606).

SDFLA Summer

1. The SDFLA is pretty quiet right now.  There's a 4-5 trial nearing its end in front of Judge Gayles for the interns who want to see some good lawyering.  

2. Former SDFLA AUSA Michael Brown has been nominated to the district bench in the NDFLA.  Brown is a good guy, who currently works at Alston & Bird:

It's been a good month for Alston & Bird partner Michael L. Brown.
President Donald Trump nominated Brown July 13 to fill a long-vacant post on the federal court bench in the Northern District of Georgia. Brown's nomination came only 23 days after he and his New York law partner secured the acquittal of a bond trader in a federal trial in Connecticut closely watched by Wall Street.
Brown—a former federal prosecutor and co-leader of Alston's government and internal investigations practice—teamed up with Alston New York partner Brett Jaffe in a successful defense of Tyler Peters, a former vice president at international broker-dealer Nomura Securities International Co.
The jury convicted only one of Peters' co-defendants in the securities fraud conspiracy and gave Brown's client a clean sweep after the Alston team presented Peters as a junior trader who was simply doing what he had been trained by his supervisor to do and who did not know that the misstatements the traders made when making securities sales were illegal.
The court record included scrappy—and lengthy—letters Brown wrote to the judge on the defense team's behalf flatly accusing federal prosecutors of misconduct. The at times pugnacious letters were indicative of Brown's style. He is not afraid of a legal brawl.
"Mike is a great lawyer," said Atlanta attorney Page Pate, who has known Brown since the two were first-year law students at the University of Georgia. "If he is representing the government, he's going to be a hard-ass for the government. If he's representing a client, he's going to fight like hell for his client. He is one of a select group of people who can literally go either way."

3. This is a pretty funny tweet for you GoT fans:

The R+L=J Theory is SO last season... #GameOfThrones  #GoTS7 pic.twitter.com/t3dkAeo5h3

— DavidCaspi (@DavidCaspi) July 17, 2017

Judge Milton Hirsch's Constitutional Calendar

If you haven't subscribed to Judge Milton Hirsch's Constitutional Calendar, you should. To subscribe, send an email to is Milton-Hirsch-constitutionl-calendar+subscribe@googlegroups.com.

[UPDATE -- I had the unsubscribe email up earlier. Sorry about that, but it is fixed now.]

Here is today's entry:

On July 18, 1949, Jackie Robinson, the first African-American to play major league baseball in the modern era, appeared before the House Un-American Activities Committee. Robinson was not suspected of being a communist or “fellow traveler.” But communists at home and abroad were in the habit of making much of the hypocrisy of an America that preached democracy and equality, but practiced Jim Crow. HUAC wanted assurances that the American black community was not tempted by communist blandishments.

Robinson began his testimony with a brief statement. (This was a good sign. Many witnesses were denied the privilege of making any statement before answering questions.) It included the following:

"I have had a great many messages come to me, by wire, phone and letter, urging me not to show up at this hearing. And I ought to make it plain that not all of this urging came from Communist sympathizers. Of course most of it did. But some came from people for whom I have a lot of respect and who are just as opposed to Communist methods as I am.

"And so it isn’t pleasant for me to find myself in the middle of a public argument that has nothing to do with the standing of the Brooklyn Dodgers in the pennant race – or even the pay raise I am going to ask Mr. Branch Rickey for next year!

"So you’ll naturally ask, why did I stick my neck out by agreeing to be present and why did I stand by my agreement in spite of the advice to the contrary."

Robinson went on to assure the committee members that the African-American community would not be seduced by the communist sales-pitch. Apparently the committee was satisfied. Robinson never heard from them again.

New JNC members announced

Here's the list of new JNC members for the Southern District of Florida (h/t Celia Ampel):

The Southern District JNC members are:

• Chair Manny Kadre, chairman and CEO, MBB Auto LLC, Coral Gables

• Georgina Angones, assistant dean of law development and alumni relations, University of Miami School of Law, Coral Gables

• Ellyn Bogdanoff, shareholder, Becker & Poliakoff, Fort Lauderdale

• Reginald Clyne, partner, Quintairos, Prieto, Wood & Boyer, Miami

• Kendall Coffey, partner, Coffey Burlington, Miami

• Vivian de las Cuevas-Diaz, partner, Holland & Knight, Miami

• Renier Diaz de la Portilla, solo practitioner and mediator, Renier Diaz de la Portilla P.A., Miami

• Albert Dotson Jr., partner, Bilzin Sumberg, Miami

• Peter Feaman, president, Peter M. Feaman P.A., Boynton Beach

• Robert Fernandez, partner, Zumpano Castro, Coral Gables

• Daniel Foodman, partner, WNF Law, Miami

• Philip Freidin, partner, Freidin Brown, Miami

• Carey Goodman, mediator, Cudjoe Key

• Anat Hakim, general counsel, WellCare, Tampa

• Jillian Hasner, president and CEO, Take Stock in Children, Miami

• Marilyn Holifield, partner, Holland & Knight, Miami

• Eduardo Lacasa, chief operations officer, Chrysalis Health, Fort Lauderdale

• Ira Leesfield, partner, Leesfield Scolaro, Miami

• Dexter Lehtinen, partner, LSRCF Law, Miami

• David Leibowitz, general counsel, Braman Management Association, Miami

• Richard Lydecker, founding partner, Lydecker Diaz, Miami

• Debbie Maken, author and attorney licensed in Mississippi, West Palm Beach

• Tom Mersch, partner, Kelley Kronenberg, Fort Lauderdale

• Carlos Nunez, partner, WNF Law, Miami

• Thomas Panza, senior partner, Panza, Maurer & Maynard, Fort Lauderdale

• Edward Pozzuoli, president, Tripp Scott, Fort Lauderdale

• David Prather, partner, Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, West Palm Beach

• Dennis Richard, partner, Richard & Richard, Miami

• Robert Rigal, CEO, Echelon Medical Capital, Boca Raton

• Jon Sale, of counsel, Broad and Cassel, Miami

• Christian Searcy, president and CEO, Searcy Denney Scarola Barnhart & Shipley, West Palm Beach

• Harley Tropin, president, Kozyak Tropin & Throckmorton, Coral Gables

• Joanne Urquiola, Joanne R. Urquiola P.A., Miami

• Steve Waserstein, partner, WNF Law, Miami

• Stephen Zack, partner, Boies Schiller Flexner, Miami

Judge Frank Hull to take senior status

Zoe Tillman reports that Judge Frank Hull is taking senior status:

Two new upcoming vacancies: 11th Circuit Judge Frank Hull (HT @cardinals150) and SDNY Judge Kevin Castel, per federal judiciary

— Zoe Tillman (@ZoeTillman) July 12, 2017

This is big news as she is probably the most conservative judge on the Court as it relates to criminal justice issues, even though she is a Clinton appointee.

Plea bargaining and tattoos

Plea bargaining and tattoos.

Chief Judge Ed Carnes starts an opinion about plea bargaining this way, comparing the process to tattoos:

In negotiating a plea bargain both sides aim for the best terms they can get, placing bets on what the future will hold. The problem is that the future and certainty are strangers and not everyone wins a wager. Sometimes a deal, like a tattoo, does not age well and what appeared to be attractive in the past seems unattractive in the future. But plea agreements, like most tattoos, are written in permanent ink and cannot be redrawn just because one party suffers from the plea bargain form of buyer’s remorse. This case is here because two defendants convinced the district court, over the government’s objections, to take up the judicial pen and redraw their freely entered plea agreements whose ink had been dry for nearly a decade.

Still no cameras in the Supreme Court

You can film the cops on the street, but you can't watch a Supreme Court argument.  Something is wrong there.  The 3rd Circuit ruled last week that you have a constitutional right to record the police on the street.  From the AP:

A federal appeals court in Philadelphia has joined five other circuits in finding that citizens have a First Amendment right to videotape police in public.

The U.S. 3rd Circuit on Friday joined what it called the "growing consensus" that the public can photograph or record police without retaliation.

U.S. Judge Thomas L. Ambro stressed that the U.S. Constitution grants citizens the right to "information about how our public servants operate in public."

He acknowledged the pressure faced by police but said bystander recordings since at least the Rodney King beating by Los Angeles police in 1991 have both "exposed police misconduct and exonerated officers from errant charges." Such recordings, he said, provide different perspectives than the images captured by police dashboard and body cameras.

Cellphone recordings in the years since King's violent arrest was videotaped by a bystander have repeatedly captured shootings of motorists, suspects and others by police, fueling a national conversation around policing and minority communities, activists say.

"There's just no question in 2017 that the right to record the police is part of the liberty protected by the First Amendment, even more so now that smartphones are as ubiquitous as they are," said Molly Tack-Hooper, a staff attorney with the American Civil Liberties Union of Pennsylvania who argued the case. "A huge percentage of the country walks around with technology in their pocket that enables them to deter police misconduct by merely holding up a smartphone ... and distributing those recordings at the touch of a button."

Each federal appeals court that has weighed the issue has found it unconstitutional for police to interfere with such public recordings, Ambro said. The technology allows bystanders to complement traditional press accounts of how police use their power, he said.

Supreme Court Justices are public servants as well. We should get a chance to see how they operate in court.

Should judges be able to reject plea deals?

Should judges be able to reject plea deals?  That's the question raised in this case where "a federal judge in West Virginia has rejected a plea deal for a man accused of dealing heroin and fentanyl, arguing that 'the secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.'" From the Washington Post:

In his 28-page ruling, the district judge for the southern district of West Virginia, Joseph R. Goodwin, notes the severity of the opiate epidemic in West Virginia, calling the state “ground zero” in a crisis that amounts to “a cancer that has grown and metastasized in the body politic of the United States.”

He argues that given this context, “the bright light of the jury trial deters crime, enhances respect for the law, educates the public, and reinforces their sense of safety much more than a contract entered into in the shadows of a private meeting in the prosecutor’s office.”

The judge makes a compelling case about needing more trials:

Plea bargains have become so widespread in part because of a perception that they place a lighter load on an overburdened criminal justice system.

But Goodwin argues that this perception is outdated. The judge draws on federal data sources to illustrate that federal criminal trials have fallen precipitously even as the number of U.S. attorneys has grown dramatically.

“In [fiscal year] 1973,” he writes, “each federal prosecutor handled over eight criminal trials on average. By [fiscal year] 2016, the average number of criminal trials handled by each federal prosecutor plummeted to 0.29 trials.”

Even though the system desperately needs more trials, it strikes me as wrong and dangerous to reject plea deals on an individual basis to accomplish this goal.  Rejecting plea deals on an individual basis will unfairly harm particular defendants, especially if that defendant will get a higher sentence should he lose the trial.

So, I think there are lots of ways judges can accomplish more trials.  For example, give more variances after trial.  Explain to defendants that there will not be a trial tax for going to trial.  Hold prosecutors' feet to the fire for discovery and other violations so that they don't think that they can get away with everything.  Enforce violations by excluding evidence.  Appellate courts need to have a more limited view of harmless error in the few cases that do go to trial.  There's a lot more to be said here.

Yes, more trials, but not this way.

Happy 12th Birthday to the Southern District of Florida Blog

Happy 12th Birthday to the Southern District of Florida Blog!

Twelve years ago in 2005, on the July 4 weekend, I started this blog and it's been a fun run of over 3,200 posts and over 5 million page views.

To put the 12 years in perspective:

The Wilkie Ferguson courthouse was not yet open.
Judge Zloch was Chief Judge of the District.
Mel Martinez was one of our Senators.
Alex Acosta had just been named Acting U.S. Attorney.
The Supreme Court had five different Justices than today: Rehnquist, Scalia, Stevens, Souter and O'Connor.
There was no Twitter.
My firm had one lawyer, me (it now has 5).
I had one daughter (I now have 3).
My commute was 20 minutes (it's now 45).
We still don't have a Floridian serving on the Supreme Court, which was the very first post!

Thanks again to all of you for reading and for the tips.  I still very much enjoy keeping tabs on the most interesting and exciting District in the country.

Top anticorruption prosecutor in Colombia arrested for ...

The top anticorruption prosecutor in Colombia was arrested for ...

you guessed it, corruption.

And of course there is Miami connection.  From the NY Times:

Colombia’s top anticorruption prosecutor was arrested Tuesday in his country’s capital after Drug Enforcement Administration agents in Miami said they had recorded him in South Florida at meetings where a former Colombian governor was asked to pay bribes in exchange for favorable treatment and names of witnesses.

The arrest is a blow to Colombia’s president, Juan Manuel Santos, whose conservative critics have accused his administration of mismanagement. In April, more than 10,000 people took to the streets to protest what many say is widespread graft.

The prosecutor ensnared in the latest case, Luis Gustavo Moreno Rivera, 35, is the director of the anticorruption unit of the attorney general’s office in Colombia. Mr. Moreno was under scrutiny by federal investigators in the United States because of accusations that he planned to seek a bribe from a criminal defendant while in Miami this month to deliver an anticorruption presentation to the Internal Revenue Service.

“With indignation and profound institutional pain,” the Colombian attorney general’s office said Tuesday, Mr. Moreno was held after Interpol issued a red notice “for conduct that seriously damages our institutional integrity.”

Meet your newest Magistrate Judge

Congrats to Shaniek Maynard, who was sworn in this week as our newest Magistrate Judge.  She will be stationed in Ft. Pierce.

(The blog first reported on the District's choice back in March).

Last day of the Term

This is a really funny note from Justice Rehnquist to Justice Marshall, expressing end-of-school-itis.  Today is the last day of the Term, and you can get all of your news at SCOTUSblog.

Funny Things Happen At Trial

Last week, the Supreme Court gave permanent resident Jae Lee, a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, leading to Lee's deportation.  The twist here is that Lee's chances to win at trial were almost nil and therefore, he would get deported anyway.  So can a lawyer be ineffective for telling a defendant to plead guilty where the proof of guilt is overwhelming?

Chief Justice John Roberts, in his opinion for the court, said yes and explained that pleading guilty was a certain deportation and going to trial was an "almost" certain deportation.  Had Lee known this, he would have opted for trial even in the face of overwhelming odds.  I particularly liked NACDL's* amicus (available here), which explains that "funny things happen" at trial:

For all types of litigants, “there is no such thing as a sure winner . . . at trial” and “juries are inherently unpredictable.” Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 739–40 (N.D. Ill. 2014). Taking a case to trial may be more than just a “Hail Mary.” See Pet’r Br. at 30. Instead, it is a key part of criminal procedure that has nothing to do with “whimsy” or “caprice,” and everything to do with putting the government to its proof. Strickland v. Washington, 466 U.S. 668, 695 (1984).
Funny things happen on the way to, and at, the forum.12 The annals of criminal law are replete with unexpected developments and shocking results in the courtroom. A variety of factors influence a jury ver- dict, or a non-verdict. Trial practices affect trial out- comes. For example, juror note taking practices, the jury’s ability to ask the witnesses questions, the jury’s opportunity to discuss evidence before delibera- tion, jury instructions, juror sequestration, and the length of the deliberations may affect the outcome of a trial. Paula L. Hannaford-Agor, When all eyes are watching: Trial characteristics and practices in noto- rious trials, 91 Judicature 197, 200 (2008). Mr. Lee may reasonably weigh these factors, as well as those that affect a hung jury, against accepting his plea bargain. See Paula Hannaford-Agor et al., Why Do Hung Juries Hang? 251 Nat’l Inst. Justice J. 25, 26– 27 (July 2004). Many factors influence a hung jury, separate from jury nullification—the quality of the evidence, the degree to which jurors believe that the law they are instructed to apply is fair, and the jury deliberation process. Id. For example, a survey in the early 2000s revealed “39 percent of potential white jurors and 50 percent of potential black jurors would be ’very willing’ or ‘mostly willing’ to acquit, despite evidence of guilt, in a first-time, nonviolent drug pos- session case.” DeBartolo, 790 F.3d at 779 (citing Lawrence D. Bobo and Victor Thompson, “Racialized Mass Incarceration: Poverty, Prejudice, and Punishment,” in Doing Race: 21 Essays for the 21st Century 343 (Hazel R. Markus & Paula Moya eds., 2010) (Fig. 12.9)).
 

*Full disclosure -- I am on NACDL's Supreme Court amicus committee, but did not participate in this brief.

Implicit Bias

One of the dirty little secrets of the criminal justice system is implicit bias.  This article by the Marshall Project shows what one district court is doing about the problem:

There’s something of a formula to the first morning of jury duty. It might involve a refresher on differences between civil and criminal cases, a little bit of shuffling between rooms, and a lot of waiting around in a generously named “Jury Lounge.” But in one federal district, the customary civics lessons for jurors have been given a twist to alert them to the hidden biases they might bring into the courtroom.
The source is a 10-minute video — believed to be the first of its kind — that since March has been shown to every prospective juror in the two federal courthouses, in Seattle and Tacoma, that serve the U.S. District Court for the Western District of Washington.
The video — which cost the court $15,000 to make — complements the customary voir dire process, during which judges and lawyers question potential jurors about conflicts of interest and obvious prejudices that could prevent them from deliberating fairly. It features three speakers: the district’s U.S. Attorney Annette Hayes, Reagan-appointed Judge John Coughenour, and Jeffrey Robinson, an attorney for the American Civil Liberties Union who started his career as a criminal defense lawyer.
“You might have a deep-seated belief that basketball is a better sport than football, and you may prefer strawberry to raspberry jam,” Robinson says in the video, describing examples of conscious — or explicit — bias. “Today, though,” he says, speaking slowly and looking directly into the camera, “I want to talk to you about unconscious bias: something we all have, simply because we’re human.”

Here's the video:



Will our District employ such a video?

Judge Milton Hirsch's Constitutional Calendar has this entry today:

On June 22, 1933, in the Limestone County, Alabama, Courthouse, Judge James Edwin Horton did one of the bravest and most principled things a judge can do.

Judge Horton had presided over the trial of Haywood Patterson, one of the "Scottsboro Boys." Patterson was a young black man charged in connection with the rape of two white women; and although it was perfectly obvious that there was no real evidence against him, he had been convicted with a recommendation for death. Horton had been cautioned by an emissary from the state capitol that if he were to grant the defense motion to set aside the verdict and order a new trial, there would be no chance of his being re-elected. "What does that have to do with the case?" he replied.

On that warm day in June, Judge Horton read aloud in open court every word of his order. It took over an hour. The defense motions were granted.

As he knew he would be, Horton was defeated overwhelmingly in 1934, and never served as a judge again. Haywood Patterson was re-tried in a case presided over by Judge William Callahan, who instructed the jury, inter alia, that if there was evidence of intercourse between a white woman and a black man, the intercourse was presumed as a matter of law to be rape.

If you'd like to be added to Judge Hirsch's email list, contact him at milton.hirsch@gmail.com