Wednesday, December 30, 2020

Last post of the year

Happy New Year to all the SDFLA readers.  I really appreciate you and your comments, even the crazy anonymous ones.

If you are looking for some holiday reading, here are some articles:

1.    Esformes to continue with his appeal despite commutation, via

2.    Prof. Tribe argues that Trump could obstruct justice with some of his pardons.

3.    Prof. Dershowitz and Prof. Hellman debate life tenure for SCOTUS Justices.

4.    A mural of RBG in Westport, MO, was vandalized.  So many mean and bad people out there... Here's hoping for better in 2021.

Monday, December 28, 2020

Quiet week

 It's a quiet week in courthouses around the country.  But that didn't stop Rumpole from going after the Florida Supreme Court for doing away with Times New Roman in this order.  It's a really strange order that goes into effect at 12:03 January 1.  12:03??  It also requires two awful fonts -- Arial or Bookman Old Style.  Weird.

But Times New Roman is a bad font for legal documents.  The U.S. Supreme Court uses Century Schoolbook, and that's the font that should be the default for all legal pleadings.  There's lots out there explaining why Times New Roman is terrible (here, here, here, and here for example).

Anyway, this is what you get when it's a slow court week.  

Thursday, December 24, 2020

Happy Holidays

I hope everyone has a wonderful holiday season.

It's been an absolutely crazy year.  One of the issues that has come up is whether local governments can set curfews during the pandemic.  Judge Raag Singhal heard a challenge from some Broward bars and restaurants to the Broward midnight curfew, and they won.  From the Sun-Sentinel:

A federal court has rejected Broward County’s curfew on bars and restaurants, raising the possibility that nightclubs in much of Florida could operate through the night as COVID-19 rages.

The court specifically cited Gov. Ron DeSantis’ order in September that removed all restrictions on bars and restaurants as the state moved to Phase 3 of the coronavirus recovery.

Broward County’s rules, prohibiting the sale or alcohol between midnight and 5 a.m., violate the governor’s order and are “speculative and arbitrary,” wrote U.S. District Judge Raag Singhal of the Southern District of Florida.

Since DeSantis reopened the economy, COVID-19 cases have soared around the state, particularly in South Florida. Crowds of maskless partiers have become common in the region’s popular entertainment districts.

Tuesday, December 22, 2020

A holiday miracle (UPDATED 12/24)

President Trump commuted Phillip Esformes' 20 year sentence today:

Philip Esformes – Today, President Trump commuted the term of imprisonment of Philip Esformes, while leaving the remaining aspects of his sentence, including supervised release and restitution, intact. This commutation is supported by former Attorneys General Edwin Meese and Michael Mukasey, as well as former Deputy Attorney General Larry Thompson. In addition, former Attorneys General Edwin Meese, John Ashcroft, and Alberto Gonzalez, as well as other notable legal figures such as Ken Starr, have filed in support of his appeal challenging his conviction on the basis of prosecutorial misconduct related to violating attorney-client privilege.

While in prison, Mr. Esformes, who is 52, has been devoted to prayer and repentance and is in declining health.

Fascinating. Some open questions -- does the appeal continue because he is still on supervised release? Does this apply to the hung count as well or is that still alive? In any event, this is HUGE news in a case that the government touted at the time as the largest health care fraud case in history and one in which he was serving a 20 year sentence.   

12/24 UPDATE -- Trump issued more pardons, including for Mary McCarty, Cesar Lozada, and James Batmasian.  From the press release:

Mary McCarty — President Trump granted Mary McCarty a full pardon. Former Florida Attorney General Pam Bondi and Christopher Ruddy are among those supportive of Ms. McCarty. Ms. McCarty was a longtime public servant in Palm Beach, Florida, serving as one of its County Commissioners. In 2009, she pled guilty to one count of honest services fraud. The Supreme Court has since interpreted that statute more narrowly, meaning that Ms. McCarty’s conduct might not be criminally prosecuted today.

Cesar Lozada — President Trump granted a full pardon to Cesar Lozada. This act of clemency is supported by U.S. Representative-elect Maria Elvira Salazar and members of Mr. Lozada’s community. Mr. Lozada, an immigrant from Cuba, started a small business cleaning and servicing pools in Miami-Dade County. Since then, his business, now a pool equipment company, has grown and employs dozens of people. Today’s pardon addresses a mistake Mr. Lozada made in 2004 of conspiring to distribute marijuana, for which Mr. Lozada took full responsibility, served his sentence of 14 months in prison and 3 years supervised release, and paid a $10,000 fine. Mr. Lozada volunteers on weekends at a charity mission and serves food to the poor.

James Batmasian — President Trump granted a full pardon to James Batmasian. Mr. Batmasian’s pardon is supported by Representative Brian Mast, Alice Johnson, and former Masters Champion Bernhard Langer, among many others from the South Florida community that Mr. Batmasian has done so much to serve through his extensive charitable works.

Mr. Batmasian runs an extensive property management business in South Florida. Over a three-year period from 2001 to 2003, Mr. Batmasian made overtime payments without withholding for income taxes or FICA contributions. While illegal, Mr. Batmasian recorded all of these payments and made no attempt to hide them when confronted by IRS investigators. In 2008, Mr. Batmasian pled guilty to willful failure to collect and remit payroll taxes. Mr. Batmasian accepted full responsibility for his actions, fully repaid the IRS the money he owed, and served his 8-month sentence.

Bonus episode of For the Defense: Hank Asbill for Gov. Bob McDonnell

Today, we released a bonus episode of For the Defense, in which I interview Hank Asbill (left in the picture below) about his representation of Virginia Gov. Bob McDonnell (right).

This episode was recorded during my White Collar Law class at the University of Miami School of Law and at the end, you’ll hear questions from the students.

You can catch this episode and all episodes on our podcast website here. The Apple platform is available here, and all other platforms can be accessed here.

Thanks again for your feedback on Season 1. For the Florida lawyers who are listening, you can obtain CLE credit for listening to Season 1. Once you finish listening to the whole season, just shoot me an email, and I will send you the course number. In addition, this bonus episode has been approved for 1.5 hours of Florida CLE credit. After you listen, just email me for the separate course number.

We are preparing Season 2 now, and we are planning on launching in mid-January. The first episode of S2 will be with Alan Dershowitz on the OJ Simpson trial. I think you’ll find it very interesting.

If you or a friend would like to receive these updates, please have them sign up here

Thank you again for your continued support! --David

Sunday, December 20, 2020

Compassionate release for man serving life, by Mikayla Espinosa


Last week, Judge Altonaga granted Luis Cano’s request for compassionate release, reducing his life sentence to a term of time served.

Mr. Cano, who suffers from severe hypertension and thus is at an increased risk from COVID-19 complications, was sentenced twenty-four years ago under the continuing criminal enterprise statute. He was serving his sentence at USP Terre Haute, a BOP facility experiencing a massive COVID outbreak.

In September, Mr. Cano filed a pro se motion for compassionate release, which Judge Altonaga denied in a lengthy order. Andrea Lopez and Sam Rabin then took on the case with the unenviable task of filing a motion for reconsideration.

They were successful: Judge Altonaga found that potential legal flaws with Mr. Cano’s sentence, disparities in sentencing, the BOP’s failure to provide adequate medical treatment for Mr. Cano, and the 3553a sentencing factors all supported Mr. Cano’s release­. She also found that her earlier denial of Mr. Cano’s pro se motion had resulted in manifest injustice that justified granting the motion for consideration.

As a central part of her analysis, Judge Altonaga revisited her earlier ruling and determined that the First Step Act allows courts to consider whatever grounds for release they deem extraordinary and compelling, regardless of whether those grounds were identified by the Sentencing Commission. Although the Eleventh Circuit has not yet decided the issue, Judge Altonaga was moved by the decisions and reasoning of other circuits. This significant opinion gives real power to the First Step Act by empowering courts to go beyond limitations previously imposed on compassionate release by both the Sentencing Commission and the Bureau of Prisons.

Andrea and Sam did exceptional work. Their brief (which Judge Altonaga acknowledged to be cogent and well supported) is a goldmine for any defense attorney advancing an argument for compassionate relief.

The case is United States v. Cano, 95-00481-CR-ALTONAGA.

*DOM note: Thank you to Mikayla for her guest posts, which are great content for the blog.  If you are also interested in writing guest posts, please feel free to email me.

Thursday, December 17, 2020

Don't shush opposing counsel during depos.

And definitely do NOT insert bad haikus into pleadings. 

If you do, the 11th Circuit will affirm sanctions against you:

Peter, a member of the Florida bar who holds himself out as a bankruptcy attorney, argues that the district court abused its discretion in sanctioning him. The conduct that led to the sanctions included, among other things, his repeated “shushing” of opposing counsel during a deposition; his submission of lengthy and superfluous filings, one in which he wrote a nonsensical haiku; his argument that the bankruptcy court lacked subject-matter jurisdiction to preside over a dispute explicitly provided for in the Bankruptcy Code; and his assertion that he did not know what a privilege log was despite being a barred attorney. 

I mean, it might be nonsensical to you, 11th Circuit, but come on... art is in the eye of the beholder:

Peter then filed a 153-page motion for reconsideration of the bankruptcy court’s order denying him summary judgment, including in it accusations of domestic violence against Howard, as well as other immaterial details about family life. The filing concluded with what the bankruptcy court would later describe as “pointless poetry”—the haiku, which read: “All know: talk is cheap; Liars can claim anything; No evidence?! Balk!” The bankruptcy court denied the motion for reconsideration.  



How dare you!

Here's a New York Times article explaining what "art" is and whether it's "good."

Meantime... it's not easy to write 153 pages that includes poetry...


Wednesday, December 16, 2020

SDFLA to start live-streaming hearings

Well, this should be interesting! SDFLA is one of 13 pilot districts to try it out. This is a no-brainer in my book (especially after Covid), so I love the move.

In announcing Tuesday it will give the public access to noteworthy cases via audio livestream, the federal court system will move a few rungs closer to the 21st century — at least in 13 districts.

These livestreams will be available on the courts’ designated YouTube channels in real-time, the U.S. Courts said Tuesday.

“While the pilot temporarily suspends a prohibition on broadcasting federal court proceedings in the designated courts, the livestreams may not be recorded or rebroadcast,” the federal judiciary said. The Judicial Conference of the United States adopted a prohibition against “broadcasting, televising, recording, or taking photographs in the courtroom and areas immediately adjacent thereto” in 1972 for both criminal and civil cases.

U.S. District Judge Audrey Fleissig chairs the courts’ national policy-making body, which authorized the test program earlier this year. Its purpose, she said in a statement, is to study the livestreaming civil proceeding audio from policy, technical, operational, budgetary and administrative perspectives.

The pilot is also a nod to the federal judiciary’s commitment to transparency and increasing public access to court proceedings, Fleissig said, noting this is “an issue that has taken on even greater importance in the last year” as many courts have been forced to restrict in-person public access to courthouses due to the Covid-19 pandemic.

“At the same time, we want to develop the best practices for the process and ensure that any new practices do not compromise the integrity of federal court proceedings. That is why we are taking a measured and deliberative approach by working with volunteer pilot courts,” Fleissig said.

The move is a big one for reporters across the country who will have a much easier time covering high-profile cases, said Genelle Belmas, an associate journalism professor at the University of Kansas. The Kansas Federal Court is participating in the program.

“This is a big step in the right direction for making material available, making content available to reporters,” she said in a phone interview, adding that federal courts are just beginning to “dip a toe in the water” when it comes to expanding virtual proceedings in line with the appellate courts.

“Journalists complain a lot about not having sufficient access and this makes it so that there are fewer excuses,” Belmas said.

Monday, December 14, 2020

11th Circuit affirms dismissal of Parkland shooting case

 Here's the opinion (which affirms Judge Bloom) by Chief Judge Pryor.  The intro:

This appeal requires us to decide whether the district court erred when it dismissed a civil-rights action filed by students present at the Parkland school shooting. The students sued Broward County and five public officials on the theory that their response to the school shooting was so incompetent that it violated the students’ substantive rights under the Due Process Clause of the Fourteenth Amendment to the Constitution. The district court dismissed this claim with prejudice because it was an impermissible  shotgun pleading and, in the alternative, because it failed to state a claim and leave to amend it would be futile. On the merits, the district court reasoned that because the students were not in a custodial relationship with the officials and failed to allege conduct by the officials that is “arbitrary” or “shocks the conscience,” the students could not maintain a claim that the officials violated their substantive right to due process of law. The students appeal this decision, but settled caselaw makes clear that official acts of negligence or even incompetence in this setting do not violate the right to due process of law.
Because we agree with the district court that the students failed to state a claim of a constitutional violation and that leave to amend would be futile, we affirm.

Saturday, December 12, 2020

“Social media is mightier than Gov. DeSantis's guns“

 That’s the title of this piece I just wrote for The Hill.  You can read the whole thing here:

From the introduction:

You would think we’ve all gotten used to seeing crazy things caught on camera and posted to social media. But, no… it seems every day there’s something more outrageous and jaw-dropping than the day before. The insane video for this week shows law enforcement officers pointing guns at a scientist’s husband and two small children inside their home.

That’s right — a battery of police officers in bullet proof vests drew their guns at Rebekah Jones’s house on Monday morning while executing a search warrant to seize her electronics.

Jones, a former employee of Florida’s Department of Health, must have been suspected of some pretty bad stuff to necessitate this drastic action, right? Murder? RICO? Robbery?


She has been accused of sending an unauthorized email to the State Emergency Response Team that said: “Speak up before another 17,000 people are dead. You know this is wrong. You don’t have to be a part of this. Be a hero. Speak out before it’s too late.” Jones denies sending the email. But even if there were irrefutable proof that she had, this “investigation” involved a non-violent “crime” and a non-violent “suspect.” I put those words in quotes because… come on. This doesn’t seem like a real investigation into a real crime. It seems a lot more like pay back (more of which in a moment). Even a high-ranking and life-long Republican stepped down from his political post because of this “case.”

Friday, December 11, 2020

Who will be the next U.S. Attorney in the SDFLA? (UPDATED)

 The rumors are already swirling around town.  But there doesn't seem to be any procedure in place for applying or for vetting.  And it's unclear how Sens. Rubio and Scott will work with the Biden White House on the U.S. Attorney (and on judges for that matter).  In any event, the names I've heard so far for for the next United States Attorney for the Southern District of Florida:

1.    Jackie Arango, partner at Akerman (former AUSA)

2.    David Buckner, partner at Bucker + Miles (former AUSA).

3.    Markenzy Lapointe, partner at Pillsbury (former AUSA).

4.    Curt Miner, partner at Colson Hicks (former AUSA).

5.     Andres Rivero, partner at Rivero Mestre (former AUSA).

6.     Joan Silverstein, current AUSA (chief of the criminal division).

UPDATED -- 7. Marianne Curtis, partner at Berger Singerman (former AUSA). 

I think that's a really good slate.  All extremely smart, respected, and qualified, with lots of experience.

Have you heard any other names?

Tuesday, December 08, 2020

11th Circuit makes quick work of election lawsuits

 Here’s one that was published over the weekend. Judges that were appointed by three different Presidents (including Trump SCOTUS short-lister Barbara Lagoa) ruled unanimously. Chief Judge William Pryor, another previous Trump short-lister for SCOTUS) wrote the majority. It starts like this:

This appeal requires us to decide whether we have jurisdiction over an appeal from the denial of a request for emergency relief in a post-election lawsuit. Ten days after the presidential election, L. Lin Wood Jr., a Georgia voter, sued state election officials to enjoin certification of the general election results, to secure a new recount under different rules, and to establish new rules for an upcoming runoff election. Wood alleged that the extant absentee-ballot and recount procedures violated Georgia law and, as a result, his federal constitutional rights. After Wood moved for emergency relief, the district court denied his motion. We agree with the district court that Wood lacks standing to sue because he fails to allege a particularized injury. And because Georgia has already certified its election results and its slate of presidential electors, Wood’s requests for emergency relief are moot to the extent they concern the 2020 election. The Constitution makes clear that federal courts are courts of limited jurisdiction, U.S. Const. art. III; we may not entertain post-election contests about garden-variety issues of vote counting and misconduct that may properly be filed in state courts. We affirm

Sunday, December 06, 2020

Greatest lineup ever

One of the fun parts of doing the podcast For the Defense is hearing follow-up stories about the lawyers and cases. I've received a lot of feedback on the Roy Black interview about the Luis Alvarez case.  

Here's one bit of information I did not know before the interview -- there was a photo lineup conducted where witnesses were asked to identify the shooter (Officer Alvarez).  Alvarez had a mustache, so the folks putting together the lineup got a bunch of pictures of police officers and others with mustaches.  But they needed one more (Alvarez is #4) and couldn't find a usable picture.  So they asked a familiar face to join the lineup in picture # 6 below:

Any guesses?  I'll put the answer in the comments so it's not spoiled here.

Thursday, December 03, 2020

"Civility is overrated"

 That's the title of this Atlantic article.  And here's another article, this time by the N.Y. Times, about the traps of telling your opponent to be civil:

Mannered civility, in other words, can operate as a trap: order without justice, comity without commitment. It can pit you against an opponent who will happily fight dirty while insisting that you abide by Queensberry Rules.

Today's 11th Circuit en banc denial, in which Judges W. Pryor and Newsom attack Judge Rosenbaum's opinion for not being civil, reminded me of these articles. Judge Rosenbaum wrote a dissent in which she states her view, which was joined by three other judges (Wilson, Martin, and J. Pryor).  She wasn't being personal, and she even feels the need to apologize to Judges Pryor & Newsom and says that her dissent isn't personal:

I am truly sorry that Chief Judge Pryor and Judge Newsom seem to have taken my concerns personally. I do not believe this dissent to be personal. I have great respect for all my colleagues, and I value this Court’s collegiality. But I also have great respect for the rule of law and the need for our Court to maintain its legitimacy. And I don’t agree that defending these things or pointing out what I think is wrong with Keohane and explaining why I view it as such a big problem makes me “[un]collegial[]” and “[un]charitable,” see Newsom Op. at 22, or is an “attack[ on] . . . the integrity of judges or their commitment to the rule of law . . . [or] the legitimacy of this Court,” W. Pryor Op. at 5. Nor do the labels and characterizations the W. Pryor and Newsom Opinions feel a need to impose provide a good enough reason to remain silent in the face of the threat Keohane represents to our judicial norms. I am aware of no other way to oppose what I see as the failure of our Court to require the Keohane panel to comply with the prior-precedent rule, other than by writing a dissent that candidly discusses that problem and its significance.
I respect Judges Pryor and Newsom a great deal.  They are two of the smartest judges in the country.  And they are beautiful writers who often use colorful language.  So I don't see why they are so upset that Judge Rosenbaum uses the very same words and arguments that they have used in numerous opinions.  Do they feel the same way about Justice Scalia's opinions when he went after Justice Ginsburg or his other colleagues?  Here are some examples from the L.A. Times of Scalia's opinions:

When the U.S. Supreme Court ended its term July 1, Justice Antonin Scalia was more vindictive and isolated than ever. As the court’s most publicly confrontational justice, he repeatedly berates his colleagues. “The court must be living in another world,” as he put it. “Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.”

*** Besides biting personal rhetoric, Scalia’s opinions sound certain constant refrains. Positions he disagrees with are typically derided as “demonstrably false,” “incoherent” and “terminal silliness.” They are invariably debunked as acts “not of judicial judgment, but of political will.” He is just as likely as GOP presidential contenders Patrick J. Buchanan or Bob Dole to decry the Supreme Court’s “judicial dictatorship"--in spite of the fact that seven justices were appointed by Republican presidents.

Attacks against an opponent's writing style or arguing for civility is just a distraction from the merits. 



Wednesday, December 02, 2020

Fighting for compassion, a guest post by Mikayla Espinosa

Fighting for Compassion

Guest Post by Mikayla Espinosa

In a recent article, the Wall Street Journal highlighted efforts by former federal judge John Gleeson and Marisa Taney—a former law clerk to Judge Kathleen Williams—to obtain compassionate release for certain individuals convicted of violating the federal firearm law, § 924(c).

The work is part of a national sentencing reform movement, designed in part to address racial disparities in the criminal justice system. The WSJ reports that “[a]bout 94% of the people convicted of multiple counts under section 924(c) in fiscal year 2016 were Black or Hispanic.”

Their strategy takes advantage of two provisions of the First Step Act, a 2018 law that itself was a major step in sentencing reform. First is a provision allowing inmates whose requests for compassionate release are denied by the BOP to appeal the decision to a federal judge. Second is the Act’s reduction of mandatory sentences for people convicted of multiple § 924(c) counts after the statute was passed.

Gleeson and Taney have filed motions on behalf of several inmates who were convicted before the statute’s passage, seeking compassionate release from their sentencing courts. As the WSJ puts it, they “began interpreting ‘extraordinary and compelling’”—the standard for granting compassionate relief—“in an expansive way: Harsh mandatory sentences, since eliminated, are a valid reason for compassionate release.” The novel interpretation has been uniformly opposed by the government, which views it as an end-run around Congress’s decision not to make the First Step Act retroactive.

One of Gleeson and Taney’s motions was filed in the Southern District of Florida before Judge Dimitrouleas earlier this year on behalf of William Kinsey (99-cr-08078). Kinsey and his co-defendant committed a series of armed robberies in which no one was harmed. His co-defendant was found to be “equally culpable” for the robberies. He pled guilty, testified against Kinsey, and ultimately received an adjusted sentence of 10 years. Kinsey was sentenced to 137 years. The discrepancy resulted in large part because the government dismissed most of the co-defendant’s counts and none of Kinsey’s. Thus, Kinsey received the mandatory, consecutive sentences imposed by the court.

At the time Gleeson filed the motion on Kinsey’s behalf, Kinsey had already served 20 years in prison and was a model inmate. Judge Dimitrouleas quickly denied the motion, concluding that Kinsey’s requested relief would be available only if Congress amended the First Act to apply retroactively to multiple § 924(c) convictions.

Gleeson and Taney have had better luck elsewhere: They’ve helped win the release of 11 inmates so far.

The full article is here:

Tuesday, December 01, 2020

Episode 6, For the Defense: F. Lee Bailey for Sam Sheppard

 I'm really excited about this week's podcast episode of For the Defense. You'll hear legendary criminal defense lawyer F. Lee Bailey discuss his representation of Sam Sheppard (which includes going all the way to the Supreme Court and then for a new trial).  At the time, there was no bigger case in the history of American criminal law -- it even inspired the TV show and movie, The Fugitive. These pictures show a young Bailey with Sheppard, and of course the picture at the bottom of this post is Bailey with O.J. Simpson and Johnnie Cochran as the verdict was read. You can catch this episode and all episodes on our podcast website here. The Apple platform is available here, and all other platforms can be accessed here.

This is the finale of Season 1 of the podcast. I have really enjoyed doing the interviews and speaking to such great lawyers.  I've also enjoyed hearing from so many of you about your own trial experiences and other take-aways from the interviews.

Season 2 is already in the works and we plan on launching sometime in mid-January with the premiere episode with Alan Dershowitz.  We will also have a bonus/holiday episode with Hank Asbill discussing the fascinating trial and appeal involving Virginia Governor Robert McDonnell that will likely air on December 22.  I need your help to continue the momentum of the podcast, so please subscribe and leave comments!

If you're new to the podcast, you can learn more from this CourtTV spot about it. If you or a friend would like to receive email updates, please sign up here.

Thank you again for your continued support! --David

Hosted by David Oscar Markus and produced by rakontur

Monday, November 30, 2020

Van Buren in the Supreme Court

 This is the case out of the 11th Circuit dealing with the Computer Fraud and Abuse Act.  Although the 11th Circuit vacated Van Buren's conviction for honest services fraud, it ruled against him on the computer fraud issue.  The question presented is:

Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

Nathan Van Buren was a police officer in Georgia authorized to search computerized records about license plates for law-enforcement purposes. Falling for a sting conducted by the FBI, he searched those records for private purposes (at the request of an FBI informant who offered to pay him several thousand dollars for the information). The government charged Van Buren in federal district court with two counts of fraud: computer fraud under the CFAA and honest-services wire fraud under another statute. A jury convicted him of both counts. The U.S. Court of Appeals for the 11th Circuit vacated the wire-fraud conviction but upheld the conviction under the CFAA. Van Buren appealed to the Supreme Court last December.

All agree that the case turns on the vague language of the CFAA, which sanctions any person who “exceeds authorized access” on a computer. The statute defines that term as meaning “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Van Buren argues that the statute applies only if the defendant obtains information that he was under no circumstances entitled to obtain. From Van Buren’s perspective, a defendant who obtains information that he had a right to obtain from the computer for certain purposes (like the license-plate records at issue here) should not face federal criminal sanctions solely because the particular way in which he obtained the information was inappropriate (as it was here). Van Buren doubtless faces sanctions for violating the police department’s computer-use rules, but that is a matter for the department, he says, not for a U.S. attorney.

The government argues that Van Buren’s reading of the CFAA eliminates the word “so” from the relevant statutory phrase, which criminalizes obtaining information that the defendant “is not entitled so to obtain or alter.” For the government, the inclusion of “so” in that phrase means it is a crime if, as is the case here, the defendant was not entitled to obtain (or alter) the information in the particular way that the defendant did. A potential problem with that reading as a textual matter is that nothing in the earlier phrases of the statute suggests that “so” is meant to incorporate into the CFAA the kinds of limitations on computer access that are at issue here (and in numerous other prosecutions under the CFAA) – specifically, access limitation that derive from employment contracts, terms-of-use policies or other private agreements.

Wednesday, November 25, 2020

A failed example of jury trials during Covid

 One federal court in the Eastern District of Texas tried to conduct a jury trial.  13 people now have COVID-19.  From Above the Law:

An Eastern District of Texas breach of contract case between plaintiff ResMan LLC and defendant Karya Property Management LLC and presided over by Amos L. Mazzant II has been sidelined by an outbreak of the novel coronavirus, as reported by Law360. How bad is the outbreak? Well, at most recent count 13 people. Yikes:

David O’Toole, clerk for the Eastern District of Texas, told Law360 on Tuesday that the number of trial participants who tested positive for coronavirus had increased from at least seven on Friday to 13 confirmed positives Tuesday. The positive cases include two jurors, at least three members of the defense team, a “handful of folks” on the plaintiff’s team, and three or four court staffers.

The outbreak occurred after testimony in the trial had begun:

Jury selection was held on Nov. 2 and the trial was scheduled to last for two weeks. Jurors heard testimony every day last week and on Nov. 9, according to court records.

After lunch on Nov. 9, the judge advised the jurors and attorneys that a juror who had recently been excused tested positive for the coronavirus.

The judge then suspended the trial and asked participants to get tested and provide the court with results as soon as they were received. The judge advised participants to consult with their physicians about self-quarantining.

As a result there are only five jurors currently willing to continue with the trial, and the defendants aren’t willing to move forward with less than six jurors, so… yeah, Judge Mazzant declared a mistrial.


Tuesday, November 24, 2020

For the Defense Episode 5: H.T. Smith for Aubrey Arthur Livingston

This week in For the Defense, we have the wonderful H.T. Smith, a criminal defense lawyer, activist, and founding director of the trial advocacy program at FIU Law School.

In this episode, H.T. discusses what it means to be a criminal defense lawyer in the context of an unspeakably grisly first-degree murder case in which his client, Aubrey Arthur Livingston, was accused of participating in the killing of five people, including two small children.

H.T. tried the case before a Broward County, Florida judge who appeared to be looking forward to sending Smith's client to "Old Sparky," the electric chair in Florida that was used to inflict the ultimate punishment. Smith fought two trials and an appeal all the way to the Florida Supreme Court as the only barrier between his client and electrocution. 

You can catch this episode and all episodes on our podcast website here. It seems like Apple Podcast is the most popular platform, which is available here. All other platforms can be accessed on here.

I'm extremely grateful that the podcast is starting to gain traction, which is because of your great feedback and comments (please continue to subscribe and leave comments!). A few days ago, CourtTV picked it up and did this segment. Check it out!


Thanks again for your continued support of this project.

If you or a friend would like to receive these updates, please sign up here.

Sunday, November 22, 2020

11th Circuit in 2-1 decision strikes down conversion therapy ban

 Here's the opinion, which was written by Judge Grant and joined by Judge Lagoa.  Judge Martin dissented. (Judge Rosenberg was the district judge.)

The Sun-Sentinel covers it here:

A federal appeals court struck down Boca Raton’s ban on conversion therapy for gay adolescents struggling to come to terms with their sexuality, calling the ban an infringement on the First Amendment rights of the teens and the counselors who try to treat them.

Licensed family therapists Robert Otto and Judy Hamilton sued the city for the right to talk to their juvenile clients about conversion if the clients had “unwanted” attraction to members of the same gender or “confusion” about their gender identity.

The city’s ordinance prohibited conversion therapy as harmful to the health and emotional development of lesbian, gay, bisexual, transgender and other youth. A district court upheld the law, but Otto and Hamilton appealed, backed by religious-liberty advocates at Liberty Counsel.

A three-judge panel at the Eleventh Circuit Court of Appeals in Atlanta overturned the earlier decision by a 2-1 vote. “We understand and appreciate that the therapy is highly controversial,” wrote Judge Britt Grant. “But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”

Luckily Rudy Giuliani wasn't arguing the case as he could not answer questions about strict scrutiny last week.

Wednesday, November 18, 2020

$20k a day.

 That’s what Rudy G. is apparently asking for from the Trump campaign.  Sounds a lot like what the drug lawyers were asking for in the 80s and 90s...

From The NY Times:

Rudolph W. Giuliani, who has helped oversee a string of failed court challenges to President Trump’s defeat in the election, asked the president’s campaign to pay him $20,000 a day for his legal work, multiple people briefed on the matter said.

The request stirred opposition from some of Mr. Trump’s aides and advisers, who appear to have ruled out paying that much, and it is unclear how much Mr. Giuliani will ultimately be compensated.

Since Mr. Giuliani took over management of the legal effort, Mr. Trump has suffered a series of defeats in court and lawyers handling some of the remaining cases have dropped out.

A $20,000-a-day rate would have made Mr. Giuliani, the former New York City mayor who has been Mr. Trump’s personal lawyer for several years, among the most highly compensated lawyers anywhere.

In local news, the 11th Circuit has been conducting Zoom arguments all week. You can watch them live-streamed from a link on the website.  It’s a great opportunity to see appellate arguments.  I presented oral argument today on Zoom and did one a few months ago (via phone, not Zoom).  Zoom is definitely much better than phone.  And although I really dislike Zoom for some district court proceedings like sentencings or evidentiary hearings, Zoom seems to work well for appellate arguments.  There’s nothing like doing it in the courtroom and I hope we go back to it soon, but appeal by Zoom isn’t so bad. It’s certainly a lot less stressful. 

Tuesday, November 17, 2020

For the Defense, Episode 4: Marty Weinberg for Bill Moran

Episode 4 of For the Defense is out. In this episode, I interview Marty Weinberg, one of the great criminal defense lawyers of our day, about his representation of Bill Moran, who was accused of being in-house counsel to the Cali Cartel. I think you'll enjoy hearing Marty tell the story of this insane only-in-Miami federal trial where prosecutors weren't satisfied with going after the leaders of the Cali Cartel; they wanted the criminal defense lawyers as well. This episode is especially appropriate for this blog as the trial occurred here in the Southern District of Florida before William Hoeveler. The prosecutors were Ed Ryan and Bill Pearson.  In addition to Weinberg, Moran was represented by the great Albert Krieger.  Co-defendant lawyer Mike Abbell was represented by the Srebnick brothers.

You can catch this episode and all episodes on our podcast website here. Last week's episode with Tom Mesereau made some news with his description of what it took to get Jay Leno to testify in the Michael Jackson trial, as did the episode with Donna Rotunno (Harvey Weinstein's lawyer) about being referred to as the anti-Gloria Allred.

If you're enjoying the podcast, I would *really* appreciate it if you could subscribe and post a review. It seems like Apple Podcast is the most popular platform, which is available here. All other platforms can be accessed on here.

If you are interested in receiving updates about podcast episodes, please sign up here.

Thank you! --DOM

Sunday, November 15, 2020

What's going to happen when we have jury trials again in April 2021?

 Assuming we have trials again in the Spring, how is it going to work?  Are we going to be able to get enough jurors?  Will judges accommodate all of the scheduling nightmares that lawyers are going to have? Will everyone still be required to wear masks during the trial?

Meantime, grand juries are supposed to start up on Tuesday in SDFLA.  There will be two different grand juries and each one will meet once a week (one on Tuesday and one on Thursday).  Apparently, cases for in custody defendants will proceed first.  Then cases with statute of limitations issues.  But with such limited grand jury time, it will be interesting to see how it works.  Will the grand jurors even show up?  How will prosecutors actually schedule the time?  Will there be shortcuts?

In other parts of the country, defendants have been asking for -- and receiving -- discovery regarding the grand jury process.  Who is being excused?  Why? Is it a fair cross-section?  An so on.

Hopefully, the pandemic has changed our idea of bond.  The truth is, almost no one flees.  Ever.  And yet, we hold so many people no bond pre-trial.  During the pandemic, more people were released on bond than ever before... and unsurprisingly to defense lawyers (and prosecutors), no one fled.  Still, we held so many people in pre-trial detention.  In Texas, 80 percent of inmates who died from COVID-19 had not been convicted. These are people who were presumed innocent.  Sickening.  Our district is particularly bad when it comes to bond pending appeal.  Other districts freely grant bond pending appeal, even after trial, in white collar cases.  Why don't we?

And in other news, Justice Alito thought it was a good idea to go and give a political speech at the Federalist Society.  Very on brand for him and we know this is how he feels, but does he really need to go out there and say it?  From the Boston Globe:

“This is a conservative justice’s grievance speech. … It’s the Federalist Society manifesto through the mouth of a Supreme Court judge,” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School.

“I was stunned when I listened to it,” Gertner said of the livestreamed speech, in which Alito criticized the high court’s rulings in both recent and historic cases, including some on matters such as contraception access and coronavirus emergency orders that could come before the court again.

As this WaPo editorial wonders, why is he so angry when his side is winning?

Alito spoke quite a bit about liberty and justice in his address, but he is literally the most right wing Justice in a generation on the 4th Amendment and other criminal justice issues.  He's all in for the Second Amendment and Religious liberty... the other rights, not so much.

Friday, November 13, 2020

OPR finds no misconduct by Alex Acosta

The executive summary of the report is here.  Now I put absolutely *no* credence in anything OPR does because they literally *never* find misconduct, BUT they got this one right.  In this old article at the Hill, I explain why OPR should have spent its time investigating real prosecutorial misconduct. And in this old Herald op-ed, I explain that Acosta was unfairly criticized for the Epstein case.

I wrote that two years ago, and additional facts have come out, but I still don't get it.  With the amount of actual misconduct in the administration, I don't understand why a 10-year old decision regarding a plea agreement -- that everyone knew about when Acosta became Labor Secretary and where he was doing a good job with no scandals -- cost him his job.  Even if you believe that Epstein should have received more time, as Acosta's then first-assistant Jeff Sloman wrote here, that does not mean that Acosta and others acted unethically.  

OPR spent tons of time and resources investigating a really old plea-deal that was struct by lawyers who are no longer prosecutors where the defendant has died.  Had they found any misconduct, what were they going to do?  I'm wondering when they will look at actual prosecutors who have committed real prosecutorial misconduct that actually infringes on a defendant's rights.  Sigh...

Wednesday, November 11, 2020

Aileen Cannon set for final vote Thursday (UPDATED -- Cannon confirmed)

According to the Senate Cloakroom Twitter account: On Thursday, November 12th, under the regular order, at 12:00pm the Senate will proceed to a vote on the motion to invoke cloture on Executive Calendar #863 Aileen Mercedes Cannon to be U.S. District Judge for the Southern District of Florida. If cloture is invoked, at 1:45pm on Thursday, November 12th, the Senate will proceed to a vote on confirmation of the Cannon nomination.

 UPDATED -- Cannon, now Judge Cannon, was confirmed 56-21.

Tuesday, November 10, 2020




There wasn't a bigger star than Michael Jackson. And there wasn't a bigger trial than People of the State of California v. Michael Jackson, the four and a half month case in Santa Maria, California.

The King of Pop needed the absolute best trial lawyer he could find as the stakes couldn't have been higher. Stars lined the audience and the witness stand in a trial with wall-to-wall coverage. The question to be answered at trial: Was Neverland Ranch the site of childhood fantasy or unthinkable nightmares?

Everyone had an opinion on how Jackson and his lawyer should defend the case. Tom Mesereau had to put aside the noise and trust what got him there -- his trial lawyer instincts. From picking the jury to cross examining the complaining witnesses to deciding whether to call Michael Jackson himself to the stand, Mesereau made the right decision each and every time despite enormous criticism along the way.

We will discuss those interesting calls with Tom Mesereau on this week's episode of For the Defense.I really appreciate the feedback I've received about the first two episodes (with Donna Rotunno, the lawyer that represented Harvey Weinstein, and Roy Black for his representation of a Miami police officer who shot and killed a young Black man leading to riots). Please keep the comments coming.

Also, it would be really helpful if you could subscribe and give feedback on the podcast platforms as well. It seems like Apple Podcast is the most popular platform, which is available here. All other platforms can be accessed on this website.

Thank you! --David

Hosted by David Oscar Markus and produced by rakontur

Sunday, November 08, 2020

SDFLA closed tomorrow (Monday) for ETA

 From the clerk:

Message posted 11/8/2020 @ 2:45 p.m. 


During inclement weather periods, the safety of the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close.  In light of the announced closures of public schools in Miami-Dade, Broward, Palm Beach, St. Lucie and Monroe Counties, the federal courthouses in Miami, Fort Lauderdale, West Palm Beach, Fort Pierce and Key West will be closed on Monday, November 9, 2020.  A closure in any division includes the Bankruptcy Court and Probation, if any, in that Division.  The courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge K. Michael Moore. In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:

- The Court’s website:

- Recorded telephone messages at each courthouse

- Broadcast messages sent to CM/ECF e-filers

- Television announcements

Please note that if the Court’s website is unavailable, the Administrative Office of the US Courts will post emergency messages on behalf of the Court on its website:

Friday, November 06, 2020

News & Notes

I've had enough election coverage.  Here's some other interesting tidbits:

1.  Magistrate Judge Alicia Valle is up for re-appointment.  Jon Sale leads the re-appointment committee here.  Please send him comments.  

2.  People's Court Judge Marylin Milian and her husband, former AUSA and Circuit Judge John Schlesinger had some fun promoting at home court here.


3.  ACB is already asking questions.  Pretty interesting.

4. Some folks have asked me if the prosecutors or judges have responses to the podcast episodes so far on Harvey Weinstein (with Donna Rotunno) and Luis Alvarez (with Roy Black).  But this is a podcast for criminal defense lawyers about their work.  I'm happy to post any rebuttal though.  If the prosecutors or judges would like to comment, please send me your comments and I will post them in full.  

Have a great weekend everyone. 

Thursday, November 05, 2020

Recreational drug use is a winner on election day (UPDATED WITH SAD NEWS)

 Lots of controversy still swirling... but one thing both sides agree on -- recreational drugs should be legalized.  Here's an article on BuzzFeed, titled: "The Real Winner of the Election? Drugs."

In New Jersey, Arizona, Montana, and South Dakota, residents voted to legalize recreational cannabis.

Mississippi and South Dakota voted to legalize the medical use of cannabis in-state. And, for the first time in US history, Oregon decriminalized hard drugs, like cocaine, heroin, oxycodone, and methamphetamine. The state also voted to legalize psychedelic mushrooms.

This is all to say that — despite the anxiety of not yet knowing who's been elected president by Wednesday — the country took historic and progressive steps in destigmatizing drug use and drug-related offenses.


UPDATE -- some very sad news -- Pat Trese has passed away.  He was only 50 and a really nice guy.  I just met him last week during a two-day zoom hearing in federal court.  Rumpole has more at his blog.  Awful news.  2020...

Tuesday, November 03, 2020


Happy Election Day!  One of the big issues in this election is criminal justice and especially racial justice.  George Floyd, Breonna Taylor, Ahmaud Arbery, Tamir Rice, and so on.  Back in the early 80s, Miami was going through a similar time of racial tension. 

This episode of the podcast will take us back to that time and examine a case where Roy Black represented a Hispanic police officer, Luis Alvarez, who was charged with the killing of a young Black man, Nevell Johnson.  

This episode is available now on all podcast platforms including AppleSpotify and Google.

I think you'll enjoy hearing from famed criminal defense lawyer Roy Black (who has represented William Kennedy Smith, Rush Limbaugh, Helio Castroneves, and Marv Albert just to name a few).  This was the case that thrust Roy into the national spotlight, and he didn't disappoint.  Check it out!

And a big thanks to those of you who listened to the premiere episode last week with Donna Rotunno, the lawyer that represented Harvey Weinstein (which is still available on AppleSpotify, and Google). 

As the kids say, please like and subscribe to the podcast! It would really help me to get the word out!  THANK YOU!

Monday, November 02, 2020

Of course there's already a problem in Miami with the election

 The Feds are investigating what's going on with piles of ballots sitting at post offices in Miami.  The Herald is covering it here:

Two days after inspectors found dozens of undelivered ballots sitting in a post office in South Miami-Dade County, the U.S. Postal Service Office of Inspector General is preparing to sweep other mail facilities in Miami-Dade for ballots that haven’t reached their destination ahead of the Nov. 3 election.

Scott Pierce, the special agent in charge for the USPS Inspector General’s Southern Area Field Office, confirmed to the Miami Herald on Sunday afternoon that special agents “will be busy over the next couple of days conducting several station visits” at mail distribution centers in Miami-Dade.

Pierce wouldn’t disclose which locations or how many would be searched.

“Our investigation continues and, at this time, we aren’t releasing any additional statements,” he said.

On Friday night, agents discovered 48 ballots in the Princeton post office near Homestead after State Rep. Kionne McGhee tweeted a video that showed a backlog of undelivered mail piling up at the facility. McGhee said the video was shared with him anonymously by a concerned USPS employee.

Ugh, this is crazy to me.  All of us really need this election to be over already.  And with stuff like this going on, I'm concerned that we won't have an answer Tuesday night.  Fingers crossed. 

Friday, October 30, 2020

A day off to vote

What a cool concept from Adam Rabin.  He explains it on his FB page:

A Day Off to Vote is set up to encourage law firms, professional practices, and businesses of all types to support their employees with time off to vote on or before Election Day.
Some firms and businesses are accommodating their employees by giving them the whole day off on Election Day so their employees can volunteer as poll workers or in other ways. Others are giving their employees an extra hour or two to cast their ballots in person or drop off their mail ballots to an approved drop box.
As of this week, we have 58 firms and businesses participating. We also had our first commercial real estate brokerage and management firm, our first statewide law firm, and our first law firms in Miami-Dade and Broward counties join the cause.

The Daily Business Review covers it here.

Tuesday, October 27, 2020


 I am very excited to announce my new podcast, For the Defense, which is being produced by rakontur.  Here's the release.  Please let me know what you think:


Hosted by David Oscar Markus and produced by rakontur

OCTOBER 27, 2020 -- David Oscar Markus, a Miami trial attorney who has been called “a reincarnation of the old school criminal defense lawyer” and has represented clients from the head of the Cali Cartel to Fortune 500 companies and their CEOs, has partnered with rakontur, the lauded storytellers behind Cocaine Cowboys, The U and 537 Votes, to launch a new podcast series called For the Defense. 

The podcast focuses on the work of the least-respected but perhaps the most important profession in America: the criminal defense attorney.  In each episode, Markus will interview a top criminal defense lawyer about one of their most gripping trials.

Sadly, the criminal defense trial lawyer is a dying breed. The Feds have manipulated the system -- which was founded on the idea of trial by jury -- to force almost everyone (occasionally including the innocent) into pleading guilty to avoid trial. If you dare to go to trial, you risk going to prison for decades longer than had you surrendered and pleaded guilty. The system has shifted from valuing and encouraging trials to punishing those who dare exercise their constitutional right to have a jury decide their guilt.  In the 1980s, over 20% of cases went to trial -- now less than 3% do so.

Having tried cases all over the United States, Markus is well-positioned to speak to other leading criminal defense lawyers in the country and explore with them the decision they made in a high-profile case to proceed to trial, including their trial strategy, the risks involved, and the clients themselves.  

In the premiere episode, available now on all podcast platforms including Apple, Spotify and Google, Markus discusses the Harvey Weinstein case with his lawyer Donna Rotunno and what it was like for her to represent the most hated man in America against an entire movement.

New episodes will be available on Tuesdays. Among the highlights of Season One:
  • How did Roy Black flip the prosecution witnesses in his favor during the trial of a police officer charged with killing a black man during an altercation in an arcade?
  • Why did Tom Messereau initially want to call Michael Jackson to the stand but ultimately decide against it? 
  • What was going through Marty Weinberg’s head when his client, a lawyer, decided he wanted to give part of the closing argument? 
  • How did H.T. Smith deal with a judge who was wearing handcuffs as his tie-tack?
  • How did F. Lee Bailey, just a year out of law school, land the most followed trial of the day, Sam Sheppard (the defendant who ended up being the inspiration for The Fugitive)?