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.