"Finally, there is good ol’ common sense."

"Finally, there is good ol’ common sense." That's the 11th Circuit's newest judge, Kevin Newsom, who is quickly making a name for himself as a folksy, fun writer. From the intro to this opinion:

It is hornbook law that rights of all kinds—even constitutional ones—can be waived. For instance, a criminal defendant might for one reason or another elect to waive his Fourth Amendment freedom from unreasonable searches, his Fifth Amendment privilege against self-incrimination, or his Sixth Amendment right to the assistance of counsel. In the same way, a civil litigant can waive his Seventh Amendment right to a jury trial or his right, rooted in the Fourteenth Amendment, to be free from overbroad assertions of personal jurisdiction. So too, a sovereign State may choose to waive its Eleventh Amendment immunity from suit.
This case also concerns waiver—but not of some fundamental constitutional guarantee. Rather, this case is about … the Employee Retirement Income Security Act of 1974, affectionately (and hereinafter) known as “ERISA.” In particular, this interlocutory appeal requires us to determine whether a defendant is capable of expressly waiving the six-year statute of repose contained in ERISA Section 413(1), 29 U.S.C. § 1113(1)—or whether instead, the protection provided by Section 1113(1) is so essential, so fundamental, that it (seemingly almost alone among personal rights) is inherently indefeasible and unwaivable.
We won’t bury the lede. In response to the district court’s certified question, we answer yes—Section 1113(1)’s statute of repose is subject to express waiver.

Complete list of District Court Applicants

In case you missed Friday's post, here is a complete list of the 45 applicants for the 5 open District Court seats in the Southern District of Florida (which will all be in the "Northern Division" -- i.e., Broward, Palm Beach, and Ft. Pierce):

1.	Altman, Roy
2.	Angueira, Roberto
3.	Arzola, Antonio
4.	Blumstein, Mark
5.	Bonner, Robert
6.	Brown, Richard
7.	Butchko, Beatrice
8.	Caruso, Michael
9.	Colbath, Jeffrey
10.	Cooperstein, Theodore
11.	Cortinas, Angel
12.	Davis, Michael
13.	Day, Timothy
14.	Greenberg, Benjamin
15.	Haimes, David
16.	Harwin, Michael
17.	Haury, William
18.	Hemming, Norman
19.	Kastrenakes, John
20.	Keever-Agrama, Dina
21.	Klingensmith, Mark
22.	Koenig, Timothy
23.	Lopez, Peter
24.	Manalich, Ramiro
25.	Marzen, Chad
26.	McCawley, Sigrid
27.	Meek, Leslie
28.	Morris, Tinesha
29.	Muniz, Michael
30.	Prescott, Orlando
31.	Rebull, Thomas
32.	Ruiz, Rodolfo
33.	Sanchez-Llorens, Migna
34.	Sasser, Meenu
35.	Sherwin, Michael
36.	Singhal, Raag
37.	Smith, Rodney
38.	Thornton, John
39.	Trawick, Daryl
40.	Villafana, Ann Maria
41.	Visconti, Melissa
42.	Ward, Kimberly 43. Roby, Willliam
44.	Williams, Dwayne
45	Wood, Marina Garcia

Status of U.S. Attorney, Magistrate Judge, and U.S. District Judge (UPDATED)

Lots of tips are coming in regarding the open positions in the Southern District of Florida.  From the tips I have received, here is what we know:

-- There was a new round of interviews in D.C. for U.S. Attorney.  It appears that the 3 new finalists are:

Jose ("Pepe") Diaz
Ariana Fajardo-Orshan
Lilly-Ann Sanchez

-- We have heard that the following have applied for the open Magistrate Judge seat in Miami.  This is not a complete list.  If you know of others, please send me a completely confidential tip.  The list of known applicants:

Jackie Arango
Barry Blum
Penny Birch
Celeste Higgins
Lynn Kirkpatrick
Lauren Louis
Ani Martinez
Stephanie Moon
Gera Peoples
Corey Steinberg
Erica Zaron

-- UPDATED— here is the complete list for the 5 open District Court seats:

1.
Altman, Roy



2.
Angueira, Roberto



3.
Arzola, Antonio



4.
Blumstein, Mark



5.
Bonner, Robert



6.
Brown, Richard



7.
Butchko, Beatrice



8.
Caruso, Michael



9.
Colbath, Jeffrey



10.
Cooperstein, Theodore



11.
Cortinas, Angel



12.
Davis, Michael



13.
Day, Timothy



14.
Greenberg, Benjamin



15.
Haimes, David



16.
Harwin, Michael



17.
Haury, William



18.
Hemming, Norman



19.
Kastrenakes, John



20.
Keever-Agrama, Dina



21.
Klingensmith, Mark



22.
Koenig, Timothy



23.
Lopez, Peter



24.
Manalich, Ramiro



25.
Marzen, Chad



26.
McCawley, Sigred



27.
Meek, Leslie



28.
Morris, Tinesha



29.
Muniz, Michael



30.
Prescott, Orlando


31.
Rebull, Thomas


32.
Ruiz, Rodolfo



33.
Sanchez-Llorens, Migna



34.
Sasser, Meenu



35.
Sherwin, Michael



36.
Singhal, Raag



37.
Smith, Rodney



38.
Thornton, John



39.
Trawick, Daryl



40.
Villafana, Ann Maria



41.
Visconti, Melissa



42.
Ward, Kimberly


43.
Roby, Willliam


44.
Williams, Dwayne



45
Wood, Marina Garcia

Who in the world will be U.S. Attorney in the Southern District of Florida?

Who in the world will be U.S. Attorney in the Southern District of Florida?

Initially, Jose Felix Diaz (“Pepe”) was one of the front runners. But the selection process has been all over the place and it appeared that he was out of the running in favor of Jon Sale. Then recently we heard it was going to be Judge Fajardo Orshan. Now, Marc Caputo, who has been all over this story, is reporting that Diaz, of Apprentice fame, is again a front-runner.

Meantime, applications for the 5 open federal judicial seats are due tomorrow. If you have tips on who is applying, please email me. All tips are anonymous of course.

Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit is the new chair of the Executive Committee.

Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit is the new chair of the Executive Committee.  Our former chief judge, Federico Moreno, sits on that Committee.  It's his 4th year doing so.  He sits along with the Circuit Chiefs of the DC, 2nd, 5th, and 9th, plus two district judges.

SDFLA Honors

Two nice honors for SDFLA peeps:

1.  Clerk of Court Steve Larimore has been given the Director's Award, which recognizes outstanding performance in the federal courts nationwide:

The recipients were nominated by colleagues based on career achievements and contributions to specific projects that have benefited their home courts and the federal Judiciary as a whole.
“The Director’s Awards represent the very best achievements of the Judiciary’s exceptionally dedicated work force,” said James C. Duff, Director of the Administrative Office of the U.S. Courts. “They recognize the recipients’ outstanding leadership, innovation and efficiency, and their commitment to delivering the best possible service to the public.”
The awards were granted in five areas: “Outstanding Leadership,” “Excellence in Court Administration,” “Excellence in Court Technology,” “Excellence in Court Operations/Mission Requirements,” and “Director’s Award for Extraordinary Actions.”
***
“[Larimore] has demonstrated outstanding leadership skills that have allowed him to effectively govern one of the nation’s most demanding trial courts,” Chief District Judge K. Michael Moore wrote, adding that Larimore’s achievements “have had an impact well beyond the district.” 

 2.  Judge Marcia Cooke is going to receive the Miami-Dade County Trial Lawyers Manny Crespo Award:

Congrats to both.

How will Justice Gorsuch be on criminal justice issues?

How will Justice Gorsuch be on criminal justice issues?

He won't be as good as Justice Scalia was, but he won't be as bad as Alito is. 

Here are some hints from yesterday's argument in Class as well as the first few arguments (via WSJ):

Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.
Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.
Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.
According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.”
Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.
A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.
A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.
Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked.
“No, your honor,” Mr. Feigin said.
Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.
Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment—but not that those actions necessarily are illegal.
“You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.
Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.

Peter Fay Inn of Court discussion

For those of you who are interested, I will be presenting at the Peter Fay Inn of Court tomorrow evening (Wednesday) on "Privacy, the Fourth Amendment, and the Supreme Court in the Cell Phone Era."  It's a fascinating area of the law and the Supreme Court is going to hear the cell-site data case this Term, one of the biggest 4th Amendment cases in quite some time.  The talk is at 6pm at La Loggia. 

Please RSVP via email to chayes@stu.edu or phone (305) 623-2324.

"Control the clock and control the game. Winning coaches in many sports have employed this strategy."

Judge Rosenbaum, a Chapel Hill native, wrote an opinion today with the lede as an ode to Dean Smith:  "Control the clock and control the game. Winning coaches in many sports have employed this strategy."  Here's the footnote associated with that sentence:

The legendary basketball coach Dean Smith was famous for, among other things, his Four Corners offense, a strategy all about controlling the clock. Dean Smith Dies at Age of 83, ESPN.com (Feb. 12, 2015), http://www.espn.com/mens-college-basketball/story/_/id/12296176 /dean-smith-former-north-carolina-tar-heels-coach-dies-age-83 (“Smith’s Four Corners time-melting offense led to the creation of the shot clock to counter it.”). During his 36 seasons coaching basketball at the University of North Carolina in Chapel Hill, Coach Smith amassed a .776 winning percentage that included eleven Final Four appearances, two national championships, seventeen ACC regular-season titles, and thirteen ACC tournament titles. Id. When Coach Smith passed away, the Tar Heels paid tribute to him by running his Four Corners offense in their first offensive possession in the game following his death. UNC Honors Dean Smith by Running Four Corners Offense, SportsIllustrated.com (Feb. 21, 2015), https://www.si.com/college-basketball/2015/02/21/dean-smith-unc-four-corners-tar-heels.

The rest of the intro, in case you are interested in what the case was about:

And Plaintiff-Appellee Jim Barrett asserts that the lesson wasn’t lost on Defendant-Appellant Walker County School District, either. To speak at a Walker County Board of Education meeting, the District requires a member of the public to first go through a process that can consist of several steps. If the entire process is not completed at least one week before the Board meeting, the citizen may not speak at the meeting. Yet critically, the Board completely controls the timing of a step at the beginning of the process. If the Board drags its feet in completing this step, a member of the public cannot finish the rest of the steps in time to be permitted to speak.
Barrett is a public-school teacher who believes that the District has wielded this policy to unconstitutionally censor speech critical of the Board and its employees at school-board meetings. He filed suit in federal court, asserting a variety of First Amendment facial and as-applied claims in his quest for, among other things, an injunction against various aspects of the Board’s policy governing public comment at its meetings.
The district court ultimately granted Barrett a permanent injunction based on some of his facial claims and enjoined the Board’s public-comment policy. It also allowed a number of Barrett’s other claims to proceed to discovery.
Defendants now appeal the injunction. We have appellate jurisdiction under 28 U.S.C. § 1292(a)(1), which allows us to review “[i]nterlocutory orders . . . granting . . . injunctions.” After careful review, and with the benefit of oral argument, we affirm in part, vacate in part, and remand for further proceedings.

Judge Julie Carnes concurred in a written opinion.

Save the Whales!

Judge Cooke issued this interesting order involving Lolita the orca, hosued at the Miami Seaquarium: "Lolita’s lack of protection from the elements is particularly troubling given reports that Seaquarium left her in her tank as Hurricane Irma battered South Florida."

Here's what is on Judge Cooke's mind:

1. Does Seaquarium’s orca tank currently meet AWA space and shade/shelter requirements?
2. What impact, if any, would the tank’s current failure to meet AWA space and shade/shelter requirements have on the pending Motions to Dismiss?
3. If Seaquairum’s orca tank does not currently meet AWA space and shade/shelter requirements, what, if any, remedy can this Court order to correct those deficiencies?

Here's a picture of her shortly before the storm.

Save the Whales! by David Oscar Markus on Scribd

Shocker -- feds now say Scott Rothstein was lying

Shocker -- Feds now say Scott Rothstein was lying! You don't say!

From the Herald:

Convicted South Florida Ponzi schemer Scott Rothstein, a disbarred attorney who ran a $1.2 billion investment scheme out of his Fort Lauderdale law firm, will not be receiving a reduction in his 50-year prison sentence because he lied to federal prosecutors, authorities said Tuesday.

Prosecutors withdrew their pending motion to reduce Rothstein's sentence based on his cooperation in the sprawling racketeering investigation because he was “untruthful in an affidavit” filed with the federal court. Rothstein, who helped the U.S. attorney's office gain convictions of almost 30 defendants, was hoping to see many years cut from his sentence for his assistance.

That reward won't happen.

“In the judgment of the United States, the defendant provided false material information to the government and violated the terms of his plea agreement,” Assistant U.S. Attorney Lawrence LaVecchio wrote in a motion to withdraw an earlier request for a sentence reduction with U.S. District Judge James Cohn. “Therefore, in the exercise of its sole discretion, the government moves to withdraw the previously filed motion.”

U.S. Attorney's office moves to dismiss Emoluments lawsuit against President Trump

The local U.S. Attorney's office (by AUSA Carlos Raurell) has moved to dismiss the Emoluments lawsuit against President Trump.  Here is the motion to dismiss:

Goggins Motion to Dismiss Trump emoluments clause case by David Oscar Markus on Scribd

Kevin Newsom's first published opinion

Eleventh Circuit Judge Kevin Newsom penned his first published opinion, and it looks like the 11th added another interesting writer.  From the opening paragraph:

This is a tax case. Fear not, keep reading. In determining whether the IRS properly denied a taxpayer’s claimed deduction on his 2011 return, we must decide two important and (as it turns out) interesting questions. First up: Was the money that a homosexual man paid to father children through in vitro fertilization—and in particular, to identify, retain, compensate, and care for the women who served as an egg donor and a gestational surrogate—spent “for the purpose of affecting” his body’s reproductive “function” within the meaning of I.R.C. § 213? And second: In answering the statutory question “no,” and thus in disallowing the taxpayer’s deduction of his IVF-related expenses, did the IRS violate his right to equal protection of the laws either by infringing a “fundamental right” or by engaging in unconstitutional discrimination? We hold that the costs of the IVF-related procedures at issue were not paid for the purpose of affecting the taxpayer’s own reproductive function—and therefore are not deductible—and that the IRS did not violate the Constitution in disallowing the deduction. 

JNC accepting applications for federal judge

The JNC is now accepting applications for federal judge.  Here is the letter explaining the procedure.  There are 5 vacancies, and the JNC will be sending up 10 names.  These are all openings for Ft. Lauderdale, West Palm, and Ft. Pierce.  None of the openings are for Miami.  The applications are due October 12 and interviews will be November 28 and 29.  Here is the application form.

(Also, applications are due today for magistrate judge).

More on the U.S. Attorney slot below.

Ariana Fajardo Orshan is new front runner for U.S. Attorney

Ariana Fajardo Orshan is the new front runner for U.S. Attorney, according to Marc Caputo. She is a judge in the family division, went to FIU for undergrad, and Nova for law school.  From Caputo's article:

A Miami family court judge is emerging as a new favorite to become the next U.S. attorney for the Southern District of Florida, a post of keen interest to President Donald Trump because its jurisdiction includes his self-styled winter White House, Mar-a-Lago.

Circuit Judge Ariana Fajardo Orshan in recent days has risen to the top of a crowded pack of potential nominees and has the backing of Sen. Marco Rubio and Gov. Rick Scott, one of Trump’s most loyal supporters. Scott appointed her to the bench in Florida’s Eleventh Circuit Court in 2012 before she was reelected without opposition in 2014.

“Governor Scott was glad to appoint Judge Ariana Fajardo Orshan to the Eleventh Judicial Circuit Court in 2012," said Scott spokesman John Tupps in an email to POLITICO Florida. "The Governor believes that Judge Fajardo Orshan has served the families of South Florida faithfully during her time on the bench.”

Fajardo Orshan, who gave POLITICO a “no comment” when called about the buzz over her possible nomination, also has the support of Labor Secretary Alexander Acosta, a fellow Miami Republican who served as the top prosecutor in the South Florida district under President George W. Bush, according to sources familiar with the nominating process. Acosta was also dean of Florida International University’s law school, where Fajardo Orshan is an adjunct professor.

11th Circuit asks for help from Texas

This must not have been easy.  The 11th Circuit has asked for some help from the Texas Supreme Court.  Favorite of Twitter, Texas Supreme Court Justice Don Willett: Get Ready!

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF TEXAS PURSUANT TO ARTICLE V, § 3–c(a) OF THE TEXAS CONSTITUTION TO THE SUPREME COURT OF TEXAS AND ITS HONORABLE JUSTICES:
This appeal arises from an allegedly defective surgical mesh implant. The question to be answered concerns whether under the Texas “discovery rule” a claim accrues for  purposes of starting the applicable statute of limitations period when a plaintiff knows, or has reason to know, that there is a connection between her injury and the defendant’s product or whether instead accrual (and the corresponding start of the limitations period) occurs only when the plaintiff also has reason to know that the manufacturer acted wrongfully or negligently in its manufacture of the product.
The District Court concluded that the former interpretation of Texas law was correct, and therefore granted summary judgment in favor of Mentor Worldwide LCC, the Appellee in this case. The Appellant, Ms. Ann Bergin—a resident of Texas—argues that accrual requires discovery of both the injury and its negligent cause. Thus, she avers, the District Court erred in its application of Texas law. To resolve this appeal, we must decide which of the above positions is correct, but that answer depends on an unresolved question of Texas law. We therefore certify this question of law, based on the factual background recited below, to the Supreme Court of Texas and respectfully request its guidance.

Irma update

Although the Federal Courthouses are open in the District (except for Key West), you should check in with the courtroom deputy if you have a matter scheduled this week. Apparently, some of the individual courtrooms in the Ferguson building are still without power, and in those courtrooms, matters are being rescheduled. 

I am still without power, wifi, etc., as well, so blogging will be a little slow for now.

Southern District courthouses to reopen Monday

Southern District courthouses to reopen Monday. Hope everyone is back up and running.

Update on SDFLA courts

Update from the Court on Irma closures:

The Courts of the Southern District of Florida remain closed for normal operating business, anticipated to open to the public no sooner than Monday, Sept. 18th. The closure is due to school closures and travel conditions, as well as power outages at various courthouses impacting services including the Court’s computer network

Although the Court will generally remain closed to the public, depending on circumstances of power at each courthouse, Court employees are generally directed to return to work as of Thursday, Sept. 14th, if practical, as described below. This will enable the Court to prepare for the return to normal operations next week. Specifically, all Court staff in West Palm Beach and Fort Lauderdale should report to work Thursday, Sept. 14th, if possible. All Miami supervisors and managers should report if possible on Thursday, as well as Miami IT staff, other critical Miami staff as directed by their supervisors and those who work in the Atkins and King Courthouses. In Key West and Fort Pierce, where the courthouses mostly do not have power or have other issues needing to be resolved, staff do not need to report at this time. Probation staff should contact their supervisors for reporting instructions, which may be different than for other Court personnel. 

If employees are unable to return to work due to their evacuation or other personal circumstances, the Court will be flexible in granting administrative leave for Thursday and Friday. The Court’s top priority is the safety and well being of our personnel, and no employee is expected to return to work if it would put their safety in jeopardy. However, all employees must pay close attention to the Court’s website and be on the look out for calls/emails from the Court providing further updates. If employees are unable to return to work Sept. 14th, they nonetheless should contact their supervisors and stay in close contact for further developments.

Magistrate duty Court for only new arrests and other urgent matters will commence in Miami on Thursday, Sept. 14th, at 1:30 p.m. or such other time as directed. Staff necessary to cover duty court will be contacted and directed to report. Magistrate duty Court at other divisions will be scheduled on an as-needed basis.

The Courts of the Southern District of Florida remain closed for normal operating business, anticipated to open to the public no sooner than Monday, Sept. 18th. The closure is due to school closures and travel conditions, as well as power outages at various courthouses impacting services including the Court’s computer network

Although the Court will generally remain closed to the public, depending on circumstances of power at each courthouse, Court employees are generally directed to return to work as of Thursday, Sept. 14th, if practical, as described below. This will enable the Court to prepare for the return to normal operations next week. Specifically, all Court staff in West Palm Beach and Fort Lauderdale should report to work Thursday, Sept. 14th, if possible. All Miami supervisors and managers should report if possible on Thursday, as well as Miami IT staff, other critical Miami staff as directed by their supervisors and those who work in the Atkins and King Courthouses. In Key West and Fort Pierce, where the courthouses mostly do not have power or have other issues needing to be resolved, staff do not need to report at this time. Probation staff should contact their supervisors for reporting instructions, which may be different than for other Court personnel. 

If employees are unable to return to work due to their evacuation or other personal circumstances, the Court will be flexible in granting administrative leave for Thursday and Friday. The Court’s top priority is the safety and well being of our personnel, and no employee is expected to return to work if it would put their safety in jeopardy. However, all employees must pay close attention to the Court’s website and be on the look out for calls/emails from the Court providing further updates. If employees are unable to return to work Sept. 14th, they nonetheless should contact their supervisors and stay in close contact for further developments.

Magistrate duty Court for only new arrests and other urgent matters will commence in Miami on Thursday, Sept. 14th, at 1:30 p.m. or such other time as directed. Staff necessary to cover duty court will be contacted and directed to report. Magistrate duty Court at other divisions will be scheduled on an as-needed basis.

Downtown Miami update

Downtown Miami Update:

It looks like downtown Miami is mostly back up and running.  The Flagler Starbucks is open.  Many restaurants are also now open.  It is unclear when magistrate court will reopen.

If you are still home and looking for more reading, check out this Judge Rosenbaum opinion about the Dark Web from last week, snuck in right before Irma:

The Dark Web. For many, the name conjures images of a suspect shadow internet world where virtually anything can be bought for the right price.* Indeed, Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”) Special Agent Tully Kessler described the Dark Web as “another side of the Internet . . . access[ible] through your Internet provider . . . [but only using] special software.” He opined that it “allow[s] the sale and trade of all kinds of things that you would never find on a regular website open to the public.” And the Dark Web—on, in one case, a site called Black Market Reloaded—is where Defendant-Appellant Michael Albert Focia chose to sell firearms domestically and internationally.
A jury convicted Focia of dealing in firearms without a federal firearms license, in violation of 18 U.S.C. § 922(a)(1)(A), and selling firearms to unlicensed residents of states other than his own without having a license to do so, in violation of 18 U.S.C. § 922(a)(5). He now challenges the sufficiency of the evidence to convict him, the jury instructions, the constitutionality of the criminal statutes of which he was convicted, and his sentence. After careful consideration, and with the benefit of oral argument, we affirm Focia’s conviction and sentence.

*In fact, the Dark Web also has a different side. Because of its layered encryption system, it plays an important role in providing safe fora for, among others, whistleblowers and journalists.

Back at it

Here's hoping everyone came out of the storm okay.  I have no power and limited cell service at home, but the office is operational with power and internet.  Although it's a ghost town, it looks like many of the buildings in downtown Miami have power.  Some are still blocked off though, so you should check first before trekking down here.  If you are coming from the south, US1 is moving along but at many spots, there are no lights and there are trees blocking the road (sometimes making US1 into one lane). 

If you are looking for something to read, check out this opinion by Judge Marcus, which came out just before the storm.  The government finds critical evidence -- a video of the crime -- and discloses it on the morning of trial.  The defense moves for a continuance.  The government does not object.  The district judge decides to go forward with the case.  Conviction affirmed because the court says that the defense cannot show prejudice.  To me, this is simply wrong:

 After closely reviewing the entire record, we cannot say that the trial court abused its discretion in denying Jeri’s motion for a new trial. Although we think it would have been wiser to allow Jeri time to view the video before starting the trial, the tape was not exculpatory and Jeri has not come close to establishing specific and substantial prejudice from this omission. We can discern no other errors in this record, and, therefore, affirm the judgment of the district court.

What effect will "wiser" have on district courts?

Good luck during the storm

Good luck to all during the storm.  I will try to keep up the blog if possible with updates.  Downtown Miami is a ghost town right now.

One 11th Circuit update -- Trump has nominated  Elizabeth Branch to the 11th Circuit for Judge Hull's seat.  She is currently a Georgia state appellate judge.  She is an Emory law grad and clerked for Judge Owen Forrester (N.D. Ga.).

Irma

The SDFla courthouses will be closed Thursday and Friday. The award banquets on Thursday night and Saturday night have also been cancelled. Stay safe!

All rise!

As you get ready for Irma... here is your moment of Zen: Judge Sotomayor in her Yankees' robe sitting in "Judge's Chambers":

Judge’s Chambers: Supreme Edition. pic.twitter.com/64JJ4kMNfz

— MLB GIFS (MLBGIFs) September 1, 2017

— #NFL 0 For Sale 🏈⚽️ (@NFL_0) September 1, 2017

Legal Awards Season

It's Legal Awards Season in Miami.

The Federal Bar Association has its big gala next Thursday, September 7 at the Four Seasons.  The big award is called "The Ned" after Edward B. Davis.  I have a soft spot for this award because it is named after the judge that I clerked for.  Judge Davis was simply the best.  Besides being an absolute awesome judge, he was a great man.  I am proud that the FBA is awarding this year's Ned to Donald L. Graham.  Judge Davis always loved Judge Graham and would be happy about this.

The Dade County Bar Association is also having its big party on September 9 at the JW Marriott.  The Presidential Award winners are: Sec. of Labor Alex Acosta, Judge Robert Luck, and Judge Lisa Walsh.  The David Dyer Professionalism Award is going to Judge Kathleen Williams, and the Johnnie Ridgely Award is for Judge Beth Bloom.

An all-star cast!

"We hold that neither robbery, armed robbery, nor use of a firearm in the commission of a felony under Florida law is categorically a 'violent felony.'"

"We hold that neither robbery, armed robbery, nor use of a firearm in the commission of a felony under Florida law is categorically a 'violent felony.'"  That was the 9th Circuit, acknowledging a split with the 6-5 en banc 11th Circuit case that the blog discussed last week.  HT: How Appealing.

I'm starting to think it would be more fun to practice out in California.

What do you all think about a judicial law clerk tweeting about a decision that his judge wrote while he was clerking.  Here's a string from Andrew Case about the Apraio trial and his thoughts on the pardon.

VW exec gets higher sentence than prosecutors request

Although prosecutors asked for 3 years, a federal judge sentenced VW exec James Liang to 40 months. If the executive branch is asking for a particular sentence, that should be the ceiling for judges... but that's not the law unfortunately.

From Law360:

A Michigan federal judge on Friday sentenced a Volkswagen AG engineer who pled guilty to charges stemming from the diesel emissions scandal to 40 months in prison, slightly longer than the three-year prison term sought by prosecutors.

After months of delays, U.S. District Judge Sean Cox sentenced James Liang to three years and four months in prison. Liang, accused of helping facilitate the installation of so-called defeat devices to skirt U.S. emissions testing in about half a million vehicles, pled guilty in September to a count of conspiracy to defraud the United States, commit wire fraud and violate the Clean Air Act.

Liang was also fined $200,000, due immediately, more than the $20,000 fine requested by prosecutors. He also agreed to be deported to Germany after finishing his prison sentence. Liang is a German citizen.

At the hearing on Friday morning, Judge Cox said that Liang was a member of a long-term conspiracy and that the scandal was “a stunning fraud on American consumers,” a courthouse observer told Law360.

Liang’s attorney, Daniel V. Nixon of Byrne & Nixon LLP, said at the hearing that Liang was the first person to accept responsibility for what happened and that he had cooperated with prosecutors and agreed to testify against another VW executive, Oliver Schmidt, if Schmidt’s case had gone to trial, according to the observer.

En banc 11th Circuit rules 6-5 that Florida felony battery is a violent felony under the Sentencing Guidelines

The en banc 11th Circuit ruled 6-5 that Florida felony battery is a violent felony under the Sentencing Guidelines.  The majority opinion was written by Judge Julie Carnes, which is significant because many were wondering whether she would end up siding with the older, conservative faction of the Court (E. Carnes, Tjoflat, Hull, Marcus, W. Pryor) on this issue, or the newer, moderate members (Martin, Jordan, Rosenbaum, J. Pryor).  The dissent was written by Judge Wilson and joined by those four Obama appointees. 

11th Circuit wades into social media and warrants

How does the warrant process work with social media accounts?  The 11th Circuit took a dive into this interesting issue in United States v. Blake.  Orin Kerr takes a closer look at the case here:

In Blake, two defendants, Dontavious Blake and Tara Jo Moore, were allegedly running a prostitution ring. The government obtained search warrants for Microsoft email accounts Blake and Moore used, as well as for the contents of Moore’s Facebook account. The email warrants required Microsoft to go through the accounts and find emails responsive to the warrant and turn only those over. The Facebook warrants required Facebook to hand over the full contents of the account and to then let the agents search it for the evidence of crime.

In an opinion by Judge Ed Carnes, the 11th Circuit concluded that the Microsoft warrants satisfied the Fourth Amendment but suggested that the Facebook warrants may not. Here’s the court rejecting Moore’s email warrant challenge:

The Microsoft warrant [for Moore’s e-mail account] complied with the particularity requirement. It limited the emails to be turned over to the government, ensuring that only those that had the potential to contain incriminating evidence would be disclosed. Those limitations prevented “a general, exploratory rummaging” through Moore’s email correspondence. The Microsoft warrant was okay.

In a footnote, the court added:

It is somewhat troubling that the Microsoft warrant did not limit the emails sought to emails sent or received within the time period of Moore’s suspected participation in the conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a time limitation did not render the warrant unconstitutional.

The court then suggested that the two-stage Facebook warrants may have violated the Fourth Amendment, although the court did not rule on the issue because the good-faith exception to the exclusionary rule applied.

Total Eclipse ... of the Heart

I love that Bonnie Tyler is performing Total Eclipse of the Heart today.

But the eclipse isn't enough for Judge Merryday out of the Middle District to allow a continuance so that a government agent could go see it:

Judge Merryday denies motion to continue to allow federal agent to view eclipse. by David Oscar Markus on Scribd

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.