Wednesday, June 27, 2018


Most experts are saying that Trump will interview 3-5 candidates for Kennedy's seat.  And most say that those include Brett Kavanaugh, Raymond Kethledge, Amul Thapur, and Amy Coney Barrett.  All highly qualified candidates.

But what about a Floridian?

Trump's list includes two Floridians: Florida Supreme Court Justice Charles Canady and former chief of the Southern District of Florida, Federico Moreno.  When Judge Moreno's name first surfaced on this last back in November, the blog covered it here.

He would be the first Supreme Court Justice to be a Floridian, Venezuelan, former practicing criminal defense lawyer, former assistant federal defender, and UM law grad.

Another name that is not on any of the lists, but should not be counted out is Secretary of Labor, Alex Acosta.  Acosta is the former U.S. Attorney for the Southern District of Florida.  More on that later.

Appoint a Floridian to the Supreme Court.

Thirteen years ago (July 2, 2005), this blog was born with the following post. In light of Justice Kennedy’s retirement, it seems right to repost it now:

Saturday, July 02, 2005

Appoint a Floridian

What better way to start the Southern District of Florida blog than with a post suggesting that the next Supreme Court Justice come from sunny South Florida. A couple months ago, I wrote an op-ed for the Miami Herald suggesting just that. I reproduce it below. Although the op-ed suggests a Floridian in general, the Southern District should be a fertile place for President Bush to look if he is looking (as the rumors suggest) for bright young Hispanic conservative jurists. It was Justice O'Connor, in fact, who suggested that diversity benefited the institution. Here it is:

Appoint a Floridian

The nine justices on the U.S. Supreme Court have served together longer than any other nine justices in recent history.

Nevertheless, President Bush may have the opportunity to appoint up to four justices to the court during his second term. Speculation has been increasing ever since Chief Justice William Rehnquist was diagnosed with thyroid cancer, requiring him to work from home and to participate only on a limited basis. The pundits have also pointed to Justices John Paul Stevens, Sandra Day O'Connor and Ruth Ginsburg as potential retirees.

There has been a great deal of discussion about whom Bush should appoint. But perhaps an equally important question is where this jurist should come from. Florida is the best choice.
No Floridian has ever been appointed to the Supreme Court. True, 18 other states are also unrepresented, but Florida's population is more than three times the size of the next largest of the 18, Wisconsin.

The current court is made up of justices from Arizona (Rehnquist and O'Connor), Illinois (Stevens), New York (Ginsburg), Massachusetts (Stephen Breyer), California (Anthony Kennedy), Georgia (Clarence Thomas), Virginia (Antonin Scalia) and New Hampshire (David Souter). Certainly there is a place for a Floridian. Consider the fact that we have produced some of the major cases to go before the court (Bush vs. Gore) and that we have more than 75,000 lawyers and judges to choose from. Only California (55), New York (31) and Texas (34) have more electoral votes than Florida (27).

In 1978, William J. Daniels attempted to discuss why the 19 states were not represented on the court, saying: ``The 19 states which have not yet had a person appointed to the court have tended to be the least populated of their region.''

O'Connor tried to explain it this way: ''The Supreme Court and other appellate courts benefit by having judges from diverse backgrounds and experiences.'' Unfortunately, ``there are fewer people of rural backgrounds to go around, on the bench or elsewhere.''

With all due respect to Idaho and the Dakotas, Florida seems to have bucked the rural label quite some time ago. And as for diversity, there is no more diverse state than Florida.
Back in 1978, Daniels concluded by saying, ``One can reasonably expect that presidents will continue to be concerned with the geographic factor, and that officials from the as yet unrepresented states will continue to call attention to their status when vacancies occur on the court.''

So here's an issue that all Floridians -- Republican, Democrat or independent -- can support: The next Supreme Court justice should come from our great state.

Monday, June 25, 2018

Judge Branch issues first CA11 opinion (we think).


In other news today, it looks like our newest Eleventh Circuit judge has written her first published opinion. In a very short nine-page opinion in Wilcox v. Corrections Corp. of America, Judge Branch affirmed the trial court’s entry of judgment as a matter of law after a jury trial. Other than the fact that the opinion is her first—and a footnote about spelling the appellant’s name—the opinion’s not particularly interesting. Given it’s short length by Eleventh Circuit standards (only nine pages), you’d think that was an “easy case” for the court’s newest member, but Judge Branch’s experience in the Georgia appellate system might suggest otherwise. However it was for Judge Branch, Ms. Wilcox didn’t fare so well, with the Court holding that because her employer had taken prompt remedial action, no damages were available to her under Title VII. Given that Ms. Wilcox won at the Eleventh Circuit on her first go around, see Wilcox v. Corr. Corp. of Am., 603 F. App’x 862 (11th Cir. 2015), this must feel a little bitter.

As David covered back in March, Judge Branch is the newest member of the Eleventh Circuit bench, taking Judge Hull’s seat. While Judge Branch has issue a few orders in her new position, as far as we can tell, this is her first published opinion that I personally recall. A quick search seems to confirm this, but please drop a tip to David if you know otherwise.

SCOTUS only decides 2 of final 6 decisions on last Monday of June

Today was supposed to be the last day of SCOTUS decisions, but it looks like we will get at least one more decision day... and the big one that everyone is waiting for is the travel ban case.  Today, the Supremes decided an antitrust case 5-4 and the Texas redistricting case 5-4.  In both cases, the conservative Justices were in the majority and the moderates were in dissent.  It shows how big of a different Garland (vs. Gorsuch) would have made to the Court.

SCOTUSblog has all the info here.

Meantime, in the antitrust case, Justice Breyer starts his dissent this way:
For more than 120 years, the American economy has prospered by charting a middle path between pure lassez-faire and state capitalism, governed by an antitrust law “dedicated to the principle that markets, not individual firms and certainly not political power, produce the opti­ mal mixture of goods and services.”
Did he just spell laissez-faire wrong?  Oh boy.

Friday, June 22, 2018

Carpenter wins 5-4

A big win for the 4th Amendment and for privacy rights.  Justice Roberts’ opinion is that cell phones are different.  And you can’t track people indefinitely.  Although the court was divided, I suspect that most Americans would agree with Roberts here.

Those old out-of-date 70s cases don’t work well with new technology.  And as much as Alito and Thomas would like to hold on to those cases, the Court is not going to be handcuffed to them. Alito also complained that there is going to be a “blizzard” of litigation because of the decision.  Why?  Is it so hard for cops to go get a warrant for this material.  If there is a question, get a warrant.  It’s not a big burden.

Quartavious Davis lost this issue before the en banc 11th Circuit court (I argued it for Davis) and the Supreme Court denied cert, which was a huge bummer.  The 11th Circuit, per Judge Hull, felt bound by the third-party doctrine cases from the 70s, like Miller and Smith.  Hull basically wrote an opinion that tracked Alito’s dissent.  The 11th Circuit dissenters, Martin and Jill Pryor, are vindicated.

Here’s the amicus brief we did in Carpenter.

Thursday, June 21, 2018

"Well, in Louisiana they'd shoot you."

That was Senator John Kennedy, a Republican from Louisiana during his questioning of Roy Altman at yesterday's hearing.  The exchange went like this:

Kennedy: "Why don't I have a right in the privacy of my home with my spouse to take cocaine? I'm not talking about buying it, that's illegal. I'm talking about I walk into my living room and the cocaine is there."

Altman: "Under the government of Louisiana —"

Kennedy: "Well, in Louisiana they'd shoot you."

Altman: "Then under the government of Florida, since the founding, the states have had police powers to regulate even intrahome conduct. And if it were the federal government, then the conduct would have to have some effect on interstate commerce."


That exchange wasn't covered in this article about the hearings:
Roy Altman, who is up for a seat on the U.S. District Court for the Southern District of Florida, served as a federal prosecutor in Miami from 2008 to 2014, before becoming a partner at the Miami firm Podhurst Orseck.
Altman told senators his experience working on a violence reduction program while serving as a federal prosecutor has prepared him for a seat on the federal bench by helping him better understand the people who will come before him in court. As part of the program, Altman gave speeches and participated in career days at public schools in the Miami area.
The program also offered job fairs and other services to people re-entering the community from prison, seeking to cut down on recidivism rates.
“A good judge understands that but for the grace of God, there go I,” Altman said. “That whether it’s a small-time plaintiff, a victim in a case or a criminal defendant, everybody deserves a fair shake. People make mistakes, people take the wrong turn, that doesn’t mean everybody’s evil and I think a district court judge needs to recognize that every single day.”
The committee also heard from Judge Rodolfo Ruiz, who is nominated to a seat on the U.S. District Court for the Southern District of Florida. Ruiz has served as a Florida state court judge since 2012, first as a county court judge for the Eleventh Judicial Circuit of Florida and later as a circuit court judge.
A Federalist Society member, Ruiz previously worked as a state prosecutor and as an associate at the Miami firm White & Case.
Ruiz told Sen. Chuck Grassley, the Iowa Republican who chairs the committee, that his lengthy experience both as a lawyer and a judge will serve him well on the federal court.
He also spoke highly of his experience training judges on implicit bias while on the state court, telling Sen. Mazie Hirono he thinks all judges could benefit from similar lessons.
“I can tell you personally, for me, it has been extremely important, especially in matters of sentencing,” Ruiz said. “And as we always say, it does not mean you have a racial problem, you just need to be aware when you’re sentencing that you take the time to pause and make sure you’re not sentencing based on factors, for instance, that have no bearing on the crime at issue.”

Wednesday, June 20, 2018

Senate to hold hearings this morning on judicial nominees Ruiz and Altman

Rodolfo Ruiz and Roy Altman have their Senate hearings this morning at 10am.  You can watch here.  No word on why Rodney Smith isn’t on the agenda this morning.

Meantime, Senator Flake is holding up Britt Grant’s nomination to the 11th Circuit.  But it’s apparently related to another issue and is not a problem with her, but Flake isn’t saying what it is.

Finally, the 11th Circuit decided to hear this suppression case en banc.  Surprise, surprise, it was a defense win with the panel.  Still no en banc hearings where the prosecution wins with the panel.

Tuesday, June 19, 2018

SDFLA accepting applications to be Clerk of Court

From the Court's website:
The United States District Court, Southern District of Florida, one of the
nation’s busiest federal trial courts, is seeking a dynamic and energetic
executive to succeed the incumbent who is retiring. This is a full‐time,
permanent, highly visible executive position. The selected candidate will be
expected to provide strong leadership to the hard working Clerk’s Office
staff. Selection includes promotion potential up to Grade JSP 18 without
need for further advertisement and competition.
The Court Administrator • Clerk of Court is appointed by the Judges of the
Southern District of Florida and functions under the direction of the Chief
U.S. District Judge. The Clerk of Court is responsible for managing the
administrative activities of the Clerk’s Office and overseeing the
performance of the statutory duties of the office. This court unit executive
position includes responsibility for compliance with the Court’s
Employment Dispute Resolution Plan which addresses equal employment
The salary isn't shabby: $173,653-$201,375. 

Congratulations to Steven Larimore on a great run as Clerk. It's not an easy job, trying to keep all of the judges happy...  I know the judges and staff will miss him.

Monday, June 18, 2018

SCOTUS Monday: Fane Lozman is 2-0

Fane Lozman has won his second case before the Supreme Court, this time 8-1.  From Justice Kennedy's intro:

This case requires the Court to address the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech. An arrest deprives a person of essential liberties, but if there is probable cause to believe the person has committed a criminal offense there is often no recourse for the deprivation. See, e.g., Devenpeck v. Alford, 543 U. S. 146, 153 (2004). At the same time, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Crawford-El v. Britton, 523 U. S. 574, 592 (1998).
The petitioner in this case alleges that high-level city policymakers adopted a plan to retaliate against him for protected speech and then ordered his arrest when he attempted to make remarks during the public-comment portion of a city council meeting. The petitioner now concedes there was probable cause for the arrest. The question is whether the presence of probable cause bars petitioner’s retaliatory arrest claim under these circumstances.
And then the intro to the analysis:
The issue before the Court is a narrow one. In this Court Lozman does not challenge the constitutionality of Florida’s statute criminalizing disturbances at public assemblies. He does not argue that the statute is overly broad, e.g., Terminiello v. Chicago, 337 U. S. 1 (1949); Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150 (2002); or that it impermissibly targets speech based on its content or viewpoint, e.g., Texas v. Johnson, 491 U. S. 397 (1989); Cohen v. California, 403 U. S. 15 (1971); or that it was enforced in a way that curtailed Lozman’s right to peaceful assembly, e.g., Brown v. Louisiana, 383 U. S. 131 (1966). Lozman, furthermore, does not challenge the validity of the City Council’s asserted limitations on the subjects speakers may discuss during the public-comment portion of city council meetings (although he continues to dispute whether those limitations in fact existed). Instead Lozman challenges only the lawfulness of his arrest, and even that challenge is a limited one. There is no contention that the City ordered Lozman’s arrest to discriminate against him based on protected classifications, or that the City denied Lozman his equal protection rights by placing him in a “class of one.” See Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam).Lozman, moreover, now concedes that there was probable cause for the arrest. Although Lozman does not indicate what facts he believes support this concession, it appears that the existence of probable cause must be based on the assumption that Lozman failed to depart the podium after receiving a lawful order to leave.
Lozman’s claim is that, notwithstanding the presence of probable cause, his arrest at the city council meeting violated the First Amendment because the arrest was ordered in retaliation for his earlier, protected speech: his open-meetings lawsuit and his prior public criticisms of city officials. The question this Court is asked to consider is whether the existence of probable cause bars that First Amendment retaliation claim.

The Court says no and reverses the 11th.

The Court also has a couple of sentencing decisions, one in favor of the defendant and one if favor of the government.  Check SCOTUSBlog for details.  (Still no Carpenter)

Judges are people too.

Just a friendly reminder that judges are people too. They eat dinner, even Supreme Court JusticesThey should be permitted to use Facebook.  And they should be able to write a letter for a friend without getting reprimanded.  From David Ovalle at the Herald:
A Miami-Dade judge, lauded for working with drug-addled defendants, has agreed to a public reprimand after she improperly wrote a letter of support for a mental-health worker convicted of federal Medicare fraud.
County Judge Deborah White-Labora is the third Miami judge in the past two months to get into trouble with Florida's Judicial Qualifications Commission The other two are facing possible expulsion from the bench, one for using a racial slur, the other for failing to report luxury hotel stays gifted to her husband.
White-Labora was cited for improperly using her position to vouch for Sam Konell, who was sentenced in February to five years in federal prison for illegally steering state-court defendants to a corrupt clinic, which in all fraudulently billed Medicare for more than $63 million.

Read more here:

Wednesday, June 13, 2018

Dershowitz takes on the recall to Judge Aaron Persky

You remember Persky.  He is the judge who gave the 6 month sentence to the Stanford student convicted of rape.  The sentence seemed too low to most observers, and the judge was just recalled.  Dersh persuasively argues that the recall is a dangerous attack on judicial independence.  Even if you disagree with the sentence, judges need to be free to judge.  If not, they will just do what the majority says:
Yet, demanding a recall of a judge because of disagreement with a particular sentence has institutional implications that transcend a single case. The campaign to recall Judge Persky was led by a feminist law professor from Stanford named Michele Dauber, who argued that Judge Persky was too lenient in his sentence and that she wanted to send a message to other elected judges.

Opponents of the recall included prosecutors and judges, who argued, “It certainly appears the goal is to teach judges, all judges, some lessons: If you want to keep your job as a judge, keep an eye on media reports of public sentiment when you are exercising your sworn duty to sentence a defendant in light of the law and the facts.”

Professor Dauber succeeded in recalling Judge Persky but, in doing so, she and those who voted for the recall inflicted a deep wound on judicial independence. Today, they recalled a judge who made a ruling against their agenda. Tomorrow, this recall will energize extremists from the right to recall judges who make rulings supporting the left-wing agenda.

California has already experienced a successful right-wing effort to remove liberal judges. Back in 1986, Chief Justice Rose Bird and Associate Justice Cruz Reynoso were voted out of office because of their opposition to the death penalty and their support of other liberal agenda issues. We are likely to see more recalls and contested judicial elections now, organized by extremists on both sides.

The sad reality is that the last thing extremists want is judicial independence. What they want is judges who will do their bidding, who will support their agenda and who will vote their side. In an age when nearly everybody picks a side and supports it without regard to neutral principles of justice or civil liberties, the danger to judicial independence comes equally from the left and the right.

The difference is that the left needs judicial independence more than does the right. This is because independent judges are supposed to defend the rights of the disenfranchised, the weak, the discriminated against and those who cannot prevail in our majoritarian political system. No judge has ever been removed from office for being too tough on crime, for imposing excessive sentences, or for siding with prosecutors. The recall is a right-wing tool that now has been sharpened by the hard left.

So the decision to recall Judge Persky may benefit the extreme left in the short run, but it hurts liberals and progressives in the long run. But extremists always demand immediate gratification and rarely look to the long-term implications of the damage they are doing. The ultimate losers will be African Americans, Hispanic Americans, Native Americans and other minorities who too often are treated unfairly by our legal system.

Tuesday, June 12, 2018

News & Notes

1.  Brendan Dassey (from the Netflix show Making a Murderer)  is trying to get the Supreme Court to hear his case.  The NY Times covers it here.

2.  New Florida Bar President Michelle Suskauer will focus on criminal justice reform and smaller law offices.  She will be great.  DBR coverage here:
Suskauer says the greatest weapon in her arsenal is social media, and she plans to use it with vigor. Followers can expect to see monthly video messages from Suskauer, as well as projects like the Legal Fuel Speaker Series, delivering on-demand, practical information to help the everyday lawyer with their practice.
Like many criminal defense attorneys, Suskauer believes rehabilitation has more societal benefits than punishment. In line with her calls for “common sense” justice reform, the bar will propose new criminal reform legislation this October at the Criminal Justice Summit — the first of its kind.
 3.  The feds have charged the former police chief and two officers in Biscayne Park for framing a teenager with unsolved burglaries.  From the Herald:
Federal prosecutors said Police Chief Raimundo Atesiano and two cops acting under his authority lied about the arrests to wow the small village's elected leaders with their crime-solving savvy.
Atesiano faced a Miami magistrate judge for the first time Monday afternoon after being indicted on charges that he violated the teen's civil rights during the arrests five years ago.
"The existence of this fictitious 100% clearance rate of reported burglaries was used by Atesiano to gain favor with elected officials and concerned citizens," according to an indictment.
Atesiano, 53, now stands accused of encouraging the officers to arrest the teen in June 2013, "knowing that there was no evidence and no lawful basis to support such charges," prosecutors said after unsealing the indictment. The teen is referred to as T.D. in the indictment.
The officers, Charlie Dayoub and Raul Fernandez, collected evidence from four unsolved burglaries, completed four arrest reports and created false narratives to imply the teen had broken into four unoccupied homes that April and May, according to the indictment. At a village council meeting in July 2013, a month after the teen's arrest, Atesiano claimed a perfect close-out rate for burglary cases in the mostly residential community near Miami Shores that is home to about 3,200 people.
Atesanio surrendered Monday to authorities on two charges of conspiring to violate the teen's civil rights and depriving him of those rights. He was granted a $50,000 personal surety bond, co-signed by his wife. Magistrate Judge John J. O'Sullivan set his arraignment for June 25.

Monday, June 11, 2018

Still no Carpenter...

I was waiting to blog this morning, thinking that SCOTUS would issue Carpenter today and I would have a lot to say.  But the watch is still on.  We did get Alito issuing an opinion that would strip voters of their ability to vote.  Sotomayor goes after him:
Our democracy rests on the ability of all individuals, regardless of race, income, or status, to exercise their right to vote. The majority of States have found ways to maintain accurate voter rolls without initiating removal processes based solely on an individual’s failure to vote. See App. to Brief for League of Women Voters of the United States et al. as Amici Curiae 1a–9a; Brief for State of New York et al. as Amici Curiae 22–28. Communities that are disproportionately affected by unnecessarily harsh registration laws should not toler-ate efforts to marginalize their influence in the political process, nor should allies who recognize blatant unfairness stand idly by. Today’s decision forces these communities and their allies to be even more proactive and vigilant in holding their States accountable and working to dismantle the obstacles they face in exercising the fundamental right to vote.

Friday, June 08, 2018

Immigration judges are judges too.

So says Judge Jordan in this opinion dealing with an issue of first impression in the country:

One of Mr. McLean’s arguments presents an issue of first impression for us (and, as far as we can tell, for the country): whether an immigration judge is a “United States judge” within the meaning of § 115(a)(1)(B).
The answer:
Fortunately, there is a statutory definition in § 115(c)(3), which provides (emphasis ours) that “‘United States judge’ means any judicial officer of the United States, and includes a justice of the Supreme Court and a United States magistrate judge.” Because this definition includes as examples both an Article III federal judge (a Supreme Court justice) and an Article I federal judge (a magistrate judge), we know that the terms “United States judge” and “judicial officer of the United States” are not limited to federal judges with life tenure (i.e., Article III judges). So Mr. McLean’s Rule 29 argument—that a “United States judge” must be appointed under Article III—fails.

Thursday, June 07, 2018

BREAKING -- Ariana Fajardo Orshan nominated to be the U.S. Attorney for the SDFLA

Here is the statement from the White House:

If confirmed, Judge Ariana Fajardo Orshan will serve as the United States Attorney for the Southern District of Florida. Judge Ariana Fajardo Orshan is currently a Circuit Court Judge of the Eleventh Judicial Circuit of Florida and an adjunct professor at Florida International University College of Law. She was appointed to the bench in 2012 by Governor Rick Scott. Prior to her appointment, Judge Fajardo Orshan was a partner in a boutique law firm where she specialized in litigation. She began her legal career as an Assistant State Attorney in Miami-Dade County, where she prosecuted a wide variety of crimes specializing in narcotics and organized crime. Judge Fajardo Orshan earned her B.S. from Florida International University and her J.D. from Nova Southeastern University Shepard Broad Law Center. Judge Fajardo Orshan is married to Robert D. Orshan and is the proud mother of a teenage son, Lucas.


Seems pretty quiet in the District right now.

The Heritage Foundation's Podcast interviews CA11 Judge Kevin Newsom here.

In state court, the 4th DCA orders a new trial in this infamous murder case, showing how harmless error really should be applied.  From the Sun-Sentinel:

An appeals court gave new life to one of Broward’s most notorious murder cases on Wednesday, ordering a new trial for a man serving a life sentence for ordering the mob-style execution of the founder of Miami Subs in 2001.
Anthony “Big Tony” Moscatiello, 79. was convicted in 2015 — the third of three defendants to face justice for the February 2001 murder of Gus Boulis.
Moscatiello had been hired as a security consultant to protect one of the new owners of the SunCruz Casino boat fleet, which Boulis had been forced to sell in late 2000. But secretly, the hire was intended to telegraph to the underworld that Moscatiello’s new boss, Adam Kidan, was protected by the Gambino crime family, according to trial testimony.
 Here's the opinion on harmless error:
Given the substantial issues of credibility of all of the major witnesses in the case, we cannot say that the State has shown beyond a reasonable doubt that the error in admitting Gurino’s statement was harmless. See Shivers v. State, 900 So. 2d 615, 618 (Fla. 1st DCA 2005) (finding the erroneous admission of an affidavit was not harmless error where the State made it a feature of closing argument). We are mindful that there is plenty of evidence of Moscatiello’s guilt. But our supreme court has consistently stated that overwhelming evidence is not the test, particularly where the erroneously admitted evidence becomes a focal point of the trial. See State v. Lee, 531 So. 2d 133 (Fla. 1988). We are constrained by these rulings.
As to the remaining issues raised, we affirm. But, because we cannot conclude that the error in admitting Gurino’s statement regarding Moscatiello is harmless under DiGuilio, we reverse for a new trial.

Tuesday, June 05, 2018

SDFLA to get 6 new AUSAs...

...but we're still waiting to see who the Big Kahuna is going to be. It's been strangely quiet on that front.

Here's the list of new AUSA positions. There will be 2 new violent crimes prosecutors, 2 new immigration prosecutors, and 2 new civil enforcement prosecutors. Just what we need...

Monday, June 04, 2018

End of Term opinions (UPDATED)

UPDATED -- we have Cake but no Carpenter.

It’s June, and that means the Supreme Court will be issuing the last opinions of the Term.  There are some biggies, including the cell-site data case in Carpenter.  USA Today says it’s been a good Term so far for privacy, but that will all change if the Court rules for the Government in Carpenter.  Here’s the USA Today intro:

Terrence Byrd was arrested in Pennsylvania four years ago with body armor and 49 bricks of heroin in the trunk of a rental car he wasn't authorized to drive.

Ryan Collins was picked up a year earlier in Virginia with a stolen, orange-and-black motorcycle that twice had sped away from police.

Both men contested their arrests all the way to the Supreme Court, which last month ruled overwhelmingly in their favor for the same reason: Their privacy was breached.

In Byrd's case, the justices ruled 9-0 that his absence from the rental policy did not give police the right to search the car. Collins, they reasoned by an 8-1 margin, was protected because police invaded his girlfriend's private property without a warrant.

And in the coming weeks, the justices will decide whether police can track the past locations of suspects' cellphones for weeks or months in order to connect them to crimes under investigation. From the sound of oral arguments last November, the answer appeared to be no.

“They’re no longer disagreeing on whether there’s a right to privacy," says Marc Rotenberg, president of the Electronic Privacy Information Center, which seeks to protect privacy and civil liberties in the information age. "You're finding a high level of agreement on both wings of the court."

Friday, June 01, 2018

11th Circuit vacates unreasonable sentence and pot-soaked legal papers

This is pretty rare, and it's good to see that the 11th Circuit has taken the step of reversing a crazy-high sentence (100+ years) where the district judge said that he would not look at other similarly situated defendants.  From the opinion:
However, our careful consideration has led us to conclude that his sentence is substantively unreasonable. In imposing what amounted to a life sentence without parole, the District Court responded to Mr. Killen’s argument that his sentence was disparate by saying “sentencing disparity is not a recognized basis for a sentence to be imposed.”10 But to the contrary, § 3553(a) lists “the need to avoid unwarranted sentencing disparities” as a factor to be considered. 18 U.S.C. § 3553(a)(6). Indeed this factor requires particular attention in the context of child pornography offenses, in light of the wide range of conduct that can constitute this type of offense, as well as the breadth of sentences authorized under the child pornography guidelines. See United States v. Kapordelis, 569 F.3d 1291, 1317 (11th Cir. 2009) (collecting cases).
The significance of considering sentencing disparity is highlighted by a comparison of the defendant’s conduct in Kapordelis to that of Mr. Killen. In Kapordelis, we affirmed Mr. Kapordelis’s 35-year sentence, which was a variance above his guideline range, where he possessed more than 500 videos and 2,000 images of child pornography, had a 20-year history of drugging and molesting minors, and had traveled abroad to have sex with minor boys. Id. at 1318–19. Mr. Killen possessed a similar number of child pornography images. However, in contrast to Mr. Kaprodelis, Mr. Killen had no hands-on contact with a minor during the less than 2-year period of his criminal conduct, let alone a 20-year history of drugging and molesting them or traveling for the express purpose of having sex with a child. Also, there are potentially mitigating facts in Mr. Killen’s case, not present in the Kapordelis case. For example, despite the fact that Mr. Killen had reached the age of majority at the time of his offense, he was found to be very immature for his age. The Magistrate Judge made this finding after the suppression hearing, and the District Court adopted it. The District Court heard from both Mr. Killen’s parents and a neighbor during sentencing that Mr. Killen was a “special needs” child. The presentence report detailed his horrific childhood in a Romanian orphanage. And yet Mr. Killen’s sentence is four times that of Mr. Kapordelis.
Thus, we conclude that the District Court did not consider “the need to avoid unwarranted sentencing disparities,” 18 U.S.C. § 3553(a)(6), and we are left with the definite and firm conviction that the court committed a clear error of judgment in weighing the § 3553(a) factors. See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (“A district court abuses its discretion when it [] fails to afford consideration to relevant factors that were due significant weight.”); Pugh, 515 F.3d at 1194 (“[A] sentence may be unreasonable if it is grounded solely on one factor, relies on impermissible factors, or ignores relevant factors.”). We therefore vacate Mr. Killen’s sentence.

The 11th Circuit also sent the case away from Judge Moore and to a different district judge for resentencing. 

In other news, and in an only in Miami story, the feds nabbed a guy soaking "legal" papers in synthetic marijuana and sending them to inmates.  Jay Weaver covers it here:
The duo's primary trick involved creating legal packets with the names of seven legitimate criminal defense attorneys in South Florida and fabricating logos, cover letters and business envelopes to give them the appearance of professionalism. They created an email address,, and a website,, featuring photos of actual attorneys in their offices.
"Once the packets were created, the documents were impregnated [soaked] with the narcotic and mailed to numerous federal inmates throughout the United States," the affidavit says. "Rodriguez often mailed the packages himself, and Mendez accepted payment and laundered those payments through personal business bank accounts."
During the 2017 investigation, FBI agents said they seized 33 packages sent to prison inmates by Rodriguez, most of which tested positive for the drug at the time the affidavit was filed in December by federal prosecutor Cristina Maxwell. At that time, the rest of the packets were still being tested for the narcotic.
Rodriguez also penetrated the Federal Bureau of Prisons' mailing system by creating packets of pot-soaked funeral announcements and obituary notices.
"These mailings consisted of photographs and obituaries of individuals purporting to be related to the inmate receiving the mail," the affidavit says. "The packages appeared to have been mailed from 'Christ Fellowship Church, Miami, Florida.' ''
FBI agents seized two of these packages, which also tested positive for Adb-Fubinaca.
During the investigation, agents said they also collected video and photographic evidence of Rodriguez at South Florida post offices while he was sending packages marked as "legal mail" with the return addresses of four different criminal defense attorneys.

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