New Podcast episode!

 

pictured: Randall Jackson (left), Tom Barrack, and Michael Schachter (right) FOR THE DEFENSE, HOLIDAY BONUS EPISODE: MICHAEL SCHACHTER AND RANDALL JACKSON FOR TOM BARRACK I hope everyone is doing great! For our 40th episode (!!), we have a really great one for you: Michael Schachter and Randall Jackson for Tom Barrack. This was a wild trial in New York, where Barrack was charged with FARA violations (being an unregistered agent of the UAE).  You can guess the result from the picture above, which was taken after the verdict.  I love how you can see the joy on their faces! Schachter and Jackson are real trial lawyers, and we discuss trial strategy from picking a jury to whether and how much to use PowerPoint to calling your client in a white collar case to the use of stories in opening and closing, and so on. I think you'll enjoy it. As always, you can catch this and other episodes on every podcast platform including Apple, Spotify and YouTube,  All other platforms can be accessed on this website.  Don't forget that last season qualified for Florida CLE and was listed at the end of the season finale (the Andrew Gillum episode). Hosted by David Oscar Markus and produced by rakontur   CONTACT: info@rakontur.com, dmarkus@markuslaw.com null

Miami Spy Game

By John R. Byrne

Pretty crazy story broken by Joshua Goodman, a reporter from the AP, about a former American diplomat who was allegedly a spy for Cuba. For two decades the man, Manuel Rocha, held top diplomatic posts on behalf of the United States in Bolivia, Argentina, and the U.S. Interests Section in Havana. All the while, he was living a double life, allegedly bringing intelligence back to Cuba. Part of his cover, apparently, was posing as an ardent "right-wing person," including as a major fan of former President Trump.

And it probably continued into his time at the private sector. In his post-government career, he served as a special advisor to the commander of the U.S. Southern Command. 

The U.S. Attorney's office in Miami charged him in a criminal complaint, posted here. He's being defended by Jackie Arango.

Criminal Complaint by John Byrne on Scribd

And means And, part 2. (UPDATED with Judge Jordan's memories of Justice O'Connor)

 We know from United States v. Garcon that in the 11th Circuit "and" means "and" for purposes of the safety valve provision of the Sentencing Guidelines.  (Another case involving the same issue was argued earlier this Term in the Supreme Court.)

Despite the en banc 11th Circuit already saying "and" means "and" for purposes of the Sentencing Guidelines, federal prosecutors and probation officers are taking the position that the word "and" means "or" in the new "Zero Point Offender" sentencing guideline provision, which provides that if you have no criminal history, you receive an additional two level reduction so long as certain other conditions are met.  One of the conditions is that:

"(10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848." (emphasis added).

Seems pretty clear as a matter of statutory construction and binding precedent that to be disqualified, you'd have to receive an aggravating role enhancement AND be in engaged in a CCE.  If you don't have both, you would still qualify for the two level reduction.

And at least two district judges in our district have so held, overruling objections from local AUSAs and probation officers, who are urging judges to disregard Garcon.  It's wild to me that there are some prosecutors so invested in increasing a first time offender's sentence by two levels that they are willing to ask a judge to ignore a binding 11th Circuit case and a pretty basic, straightforward reading of the statute.  It's one thing if these prosecutors were arguing -- listen, we know the 11th Circuit has ruled the other way, but the case is pending in the Supreme Court and we'd like to preserve this issue.  And don't get me started on the probation officers... why do they have a say in this at all?  They are not lawyers and should not be arguing the guidelines.  It's maddening.

In any event, Justice O'Connor would have really enjoyed the statutory construction issue in Garcon. She was a true inspiration to so many.  Here are the statements of the Justices about her passing.  

Here's the Chief:

Statement of Chief Justice John G. Roberts, Jr.:

A daughter of the American Southwest, Sandra Day O’Connor blazed an historic trail as our Nation’s first female Justice. She met that challenge with undaunted determination, indisputable ability, and engaging candor. We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education. And we celebrate her enduring legacy as a true public servant and patriot.

R.I.P.

UPDATED -- Thanks to a commenter for pointing me to this AJC article, which quotes Judge Jordan extensively about Justice O'Connor (he clerked for her back in the late 80s):

He fondly remembered being invited to her Chevy Chase home in Maryland most Saturdays, when O’Connor would cook while discussing the following week’s cases with her clerks.

Tex-Mex was usually on the menu, Jordan said.

“The stuff that she made for us was very, very good,” he told The Atlanta Journal-Constitution. “Tacos, burritos, nachos. Things like that. It wasn’t all exclusively Tex-Mex, but that was, I think, the majority of her repertoire.”

...

On the occasional Saturday spent working in O’Connor’s chambers, Jordan said she would bring food from home. He said the weekend conferences were a special time for the clerks as O’Connor shared her detailed thoughts on cases.

SDFLA nominees perform well before the Senate Judiciary Committee

 Here are their opening statements.  Really well done.  I thought each of the nominees gave personal and touching openings.  And they were all very well spoken.

NOMINEE: Jacqueline Becerra to the Southern District of Florida

Judge Becerra’s judicial and litigation experience — both as a federal prosecutor and in private practice — has prepared her to serve with distinction. pic.twitter.com/VfmtQVEO4e

— Senate Judiciary Committee (@JudiciaryDems) November 29, 2023

NOMINEE: Melissa Damian to the Southern District of Florida

As a litigator, Judge Damian tried more than 30 cases to verdict.

Her experience in the courtroom in both civil and criminal matters has prepared her to serve on the federal bench. pic.twitter.com/v3NLDmGkbG

— Senate Judiciary Committee (@JudiciaryDems) November 29, 2023

NOMINEE: David Leibowitz to the Southern District of Florida

Mr. Leibowitz is an accomplished litigator who has prosecuted a wide range of federal crimes, from insider trading to terrorism.

He has strong ties to this district, and his experience will be an asset. pic.twitter.com/FNM6nAsCSp

— Senate Judiciary Committee (@JudiciaryDems) November 29, 2023

SDFLA Senate Judiciary Hearing this morning

 Good luck to Jackie Becerra, Melissa Damian, and David Leibowitz who will be appearing before the Senate Judiciary Committee at 10am this morning.

You can watch it here.

AFPD Andrew Adler argues 3rd case before SCOTUS

 The case is Brown v. U.S. and the issue is: Whether the "serious drug offense" definition in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect at the time of the federal firearm offense or the federal drug schedules that were in effect at the time of the prior state drug offense.

Bloomberg has a nice article about Adler, his office (including support from Michael Caruso) and trend of FPDs arguing more cases:

Andrew Adler will make his third trip to the US Supreme Court lectern on Monday as one of a handful of federal public defenders to argue more than once.

Federal defenders from across the nation have argued at least one case every term except for one since at least 2000, according to Adler. Most often, it’s their first and only time in front of the justices.

With the Supreme Court hearing fewer and fewer cases each term, the criminal defense attorneys—like most first-time advocates—face intense pressure from elite law firms to turn over their Supreme Court cases to experienced advocates.

In response to that pressure, and to criticism from the justices, federal defenders have developed support systems to help prepare for a successful argument—both of which Adler took advantage of again this time around.

The Defender Supreme Court Resource & Assistance Panel, for example, partners first time advocates with federal defenders with high court experience.

The goal is to provide resources to offices that want to argue their cases themselves, according to Fran Pratt, an assistant federal public defender in the Eastern District of Virginia who co-chairs the group.

“I think the work product and advocacy has improved immeasurably, the best of both worlds,” said Michael Caruso, the federal public defender for the Southern District of Florida, which is based in Miami.

 

Is it time to withdraw from the Federalist Society?

 Yes, according to George Conway, Michael Luttig, and Barbara Jean Comstock, who wrote this essay in the New York Times.

Why, you ask?

Because it's still beholden to Trump.  So they've started the Society for the Rule of Law Institute -- a competitor to the Federalist Society with no Trump ties.  It is "an organization of conservative lawyers committed to the foundational constitutional princoples we once all agreed upon," including "the primacy of American democracy, the sanctity of the Constitution, and the rule of law.?

From the NY Times:

We were members of the Federalist Society or followed the organization early in our careers. Created in response to left-liberal domination of the courts, it served a principled role, connecting young lawyers with one another and with career opportunities, promoting constitutional scholarship and ultimately providing candidates for the federal bench and Supreme Court.

But the Federalist Society has conspicuously declined to speak out against the constitutional and other legal excesses of Mr. Trump and his administration. Most notably, it has failed to reckon with his effort to overturn the last presidential election and his continued denial that he lost that election. When White House lawyers are inventing cockamamie theories to stop the peaceful transition of power and copping pleas to avoid jail time, it’s clear that we in the legal profession have come to a crisis point.

We are thankful that there were lawyers in the Trump administration who opted to resign or be fired rather But these exceptions were notably few and far between. More alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency. The actions of these conservative Republican lawyers are increasingly becoming the new normal. For a group of lawyers sworn to uphold the Constitution, this is an indictment of the nation’s legal profession. Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.

We must rebuild a conservative legal movement that supports and defends American democracy, the Constitution and the rule of law and that incentivizes and promotes those lawyers who are prepared to do the same. To that end, we have formed a nonprofit organization, the Society for the Rule of Law Institute, to bring sanity back to conservative lawyering and jurisprudence.

There is a need and demand for this new legal movement that the legal profession can readily meet. Pro-democracy, pro-rule-of-law lawyers who populate our law school campuses, law firms and the courts decry what is happening in our profession. They deserve an outlet to productively channel these sentiments.

Or you could just join the American Constitution Society!

Congress and Football

 

By John R. Byrne

Thanksgiving is one of the best times to watch football. And we have a Dolphins game on Black Friday. If you're racking your brain trying to remember the last time the NFL played on a Friday, there's a reason for that. They don't do it often. And it's because of a law! From the Herald:

"The NFL traditionally doesn’t play Friday games in part because of Congress’ Sports Broadcasting Act. A 1966 amendment withdrew antitrust immunity for any pro football telecast if a high school or college football game is played within 75 miles of the station airing the NFL game."

Since 1978, the NFL has played only eight Friday games. So, enjoy this rare opportunity for Friday NFL football with your home team.