Friday, June 24, 2022

Supreme Court Overturns Roe v. Wade

By John R. Byrne

This is a big one. Vote was 6-3. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Justice Alito's opinion. Justice Roberts did not join the opinion but agreed with the result. He filed a separate opinion.

Scotus blogger Amy Howe discusses the likely effects of the ruling here.

Wednesday, June 22, 2022

"Head of Miami FBI office Piro retires; Bid-rigging probe of Broward Sheriff Tony returns to Miami"

 That's the title of an interesting article by Florida Bulldog.  The intro by Dan Christensen:

Miami FBI Special Agent in Charge George Piro is retiring, after sources say he was shown the door by FBI headquarters in Washington following a complaint by a subordinate that Piro improperly transferred his office’s bid-rigging investigation of Broward Sheriff Gregory Tony to South Carolina.

Piro’s last day in the office is said to be today, June 17, but he will officially depart June 30. The 23-year FBI veteran was named special agent in charge in November 2018. He also served as head of the Miami office from 2014-2017. In between, he was assistant director of the International Operations Division at FBI headquarters.

Phone and email messages seeking comment from Piro and FBI spokesman Mike Leverock over two days were not returned. The FBI national press office did not respond to an emailed request for comment before publication.

One source said that at a meeting with his agents last year, Piro explained transferring the Tony investigation by making two points: that he was not going to be responsible for the arrest of Broward’s first black sheriff, and that such an arrest would ruin the FBI’s relationship with the sheriff’s office, with which it frequently works.

Piro, who interrogated Iraqi dictator Saddam Hussein, also mentioned in the meeting that Sheriff Tony was responsible for sending $50,000 each to the families of two FBI agents who were killed while serving a search warrant at a Sunrise apartment on Feb. 2, 2021, the source said.

Monday, June 20, 2022

En banc happenings

On Tuesday morning, the 11th Circuit will hear three cases en banc.  Two criminal cases and one false claims case.

Notably, the panel ruled for the government in each of the three cases. 

I get on the 11th Circuit a lot, and one of my complaints is that the court almost never grants en banc review when the government prevails.  So this is nice to see.  

 I didn't find any of the panel decisions earth shattering, but here they are in case you are interested:    


Varsity Blues cases show why our criminal justice system is broken

The Varsity Blues prosecutions is a pretty good representative sample of how our criminal justice system operates.

57 defendants were indicted.

54 pleaded guilty (95%).

3 went to trial (5%).

1 was acquitted (1.75%).

Those numbers very closely track the national averages on federal cases, where about 97% of defendants plead guilty.

You'll be shocked to learn that the two defendants who went to trial and lost received the longest sentences in the case.

Some of the defendants with the best chances of acquittal pleaded guilty and either received no jail time or a few weeks of jail.  There is no question that if some of those defendants had gone to trial, some of them would have been acquitted.  But they saw the risks as too great.

The federal prosecutors who brought these cases are out there saying that winning 56 of 57 cases shows that the cases were righteous.  

But let's assume that 20% of cases went to trial and that more than a third of those were acquitted (to track the numbers that existed in this country pre-sentencing guidelines).  Would the government still be patting itself on the back?

The two defendants who lost at trial are appealing their sentences.  The appellate court will be faced with the question of whether cheating to get into college should be a federal crime.  It's an important question; however, it will be much tougher for the appellate court to reverse where almost everyone has pleaded guilty (for fear of the trial tax).  

Had more defendants challenged their cases and had done so earlier, perhaps the whole investigation would have been shut down as some would certainly have won at trial and perhaps those that lost would have won on appeal.  

Our criminal justice system was built on trials.  On forcing the government to actually prove beyond a reasonable doubt a righteous case.  Not on coercing folks to plead guilty. 

Thursday, June 16, 2022

Roy Black gets acquittal in Boston federal court in Varsity Blues case

 Yes for the 3-0-5!  The only acquittal from the Varsity Blues case... this is why more cases need to go to trial.  Almost every single one of the VB cases pleaded out.  People were too afraid of the trial tax.  But there's no tax for an acquittal! Congrats to Roy, Howard, Maria, and Jackie.

From Law360:

A Boston federal jury on Wednesday acquitted a Massachusetts businessman on charges he bribed his daughter's way into Georgetown University through illicit payments to the elite school's tennis coach, upending the government's clean record of convictions in the "Varsity Blues" investigation.

Amin Khoury was found not guilty of participating in a mail fraud conspiracy and bribery scheme for paying $180,000 to former Georgetown coach Gordon Ernst through a middleman, who also received $20,000. Prosecutors said that in exchange, Ernst marked Khoury's daughter, Katherine Khoury, as a recruit to the elite Division I school.

Khoury embraced his legal team after the jury and judge left the room.

The weeklong trial featured evidence that Khoury attended a Memorial Day weekend reunion at Brown University, resulting in an agreement that he would pay Ernst for the recruiting slot.

The alleged middleman in the scheme, Tim Donovan, testified that he met up on Cape Cod with Khoury, who gave him a paper bag filled with $180,000 in crisp bills.

Khoury's defense attorney, Roy Black of Black Srebnick PA, hammered Donovan, who testified under an immunity deal with prosecutors, suggesting he was only saying what the government wanted him to say in order to dodge liability for allegedly not paying taxes on cash fees he took for helping high school tennis players get recruited into colleges.

"It's made up by Tim Donovan as part of his scheme to get immunity," Black said during closing arguments. "Katherine Khoury got into school on her own with the help of her father's best friend from Brown as it was disclosed to the school."

Assistant U.S. Attorney Kristen Kearney, at closing, leaned into the image — offered by Donovan — of the paper shopping bag filled with $180,000 in cash that Khoury allegedly slid across a table to him.

"Brown paper shopping bag of cash," she told the jury Tuesday. "It's not some imaginary evidence the defense is asking you to conjure. It's the actual evidence in front of you. This case is not complicated. The defense had thrown a lot at you to distract you from the simple fact they cannot dispute."

"Man Can't Be Sentenced To Additional 6 Years In Jail For Calling Judge A 'Racist A$$ B*tch' "

 That's the title of this Above The Law article, which details how an appellate court reversed a sentencing court for tacking on 6 years to a sentence because the defendant wasn't happy with the initial sentence.  

In 2019, Manson Bryant was sentenced on robbery, kidnapping, and weapons charges. Bryant spoke on his own behalf at a sentencing pleading with Lake County, Ohio Common Pleas Court Judge Eugene Lucci, saying, “I don’t want to die in prison, sir. I’m not a bad person, sir. I do have a drug problem. I’ve been in front of you multiple times. I respect you. And I respect your decision that you make today.”

Lucci sentenced Bryant to 22 years in jail — significantly more than the 12 years Bryant’s co-defendant received.

And, according to court transcripts, that’s when things went off the rails.

BRYANT: Fuck your courtroom, you racist ass bitch. Fuck your courtroom, man. You racist as fuck. You racist as fuck. Twenty-two fucking years. Racist ass bitch. (CONTINUED OUTBURST BY DEFENDANT, SWEARING, YELLING, MUCH UNINTELLIGIBLE).

COURT: Remember when—

BRYANT: You ain’t shit.

COURT: Remember when I said that you had some remorse?

BRYANT: You ain’t shit. You never gave me probation.

COURT: Wait a minute.

BRYANT: You never gave me a chance.

COURT: When I said that you had a certain amount of remorse, I was mistaken. (DEFENDANT CONTINUES YELLING). The Court determines—

BRYANT: Fuck you.

COURT: The Court determines that maximum imprisonment is needed, so it’s eleven years on Count 1 and eleven years on Count 3.

BRYANT: Fuck that courtroom. You racist bitch. You ain’t shit. (MALE VOICE SAYING “MANSON” REPEATEDLY). Let me out the courtroom, man. (MORE SHOUTING AND SWEARING).

COURT: So, it’s twenty-eight years with credit for two hundred and thirty-one days. Hold on. (DEFENDANT STILL SHOUTING). Does counsel waive your client’s presence for the remainder of the advisements I have to give?


COURT: Alright. You can take him. The Court determines that [Bryant] has shown no remorse whatsoever. I was giving him remorse, a certain amount of remorse in mitigation of the sentence. [Bryant] has shown me that he has no remorse whatsoever, and therefore the Court determines that maximum imprisonment is needed.

But the Ohio Supreme Court held that Lucci’s addition of the six years — on top of the previously imposed 22 years — was improper.

“Bryant’s angry, profanity-laced tirade was, in no uncertain terms, disrespectful to the court,” the decision said. “Not only did Bryant accuse the trial-court judge of being a racist, but he did so using derogatory terms and in open court. As impertinent as this tirade was, however, we agree with Bryant that it is clear from the timing and content of what was said that his outburst was in reaction to the length of his prison sentence. Nothing more.”




Wednesday, June 15, 2022

"More Weight!"

 That's the start of this must-read article by CATO's Clark Neily.  It starts like this:

“More weight!” Those are the famous—though perhaps apocryphal—last words of octogenarian farmer Giles Corey, who in 1692 was accused of being a witch and then pressed to death by the Commonwealth of Massachusetts when he refused to enter a plea to the charge. You might think we’d have made great progress in the ensuing 330 years when it comes to the government’s use of coercion against recalcitrant defendants, but you’d be wrong. Pressure is still the mainspring of American criminal justice—we just don’t use rocks and gravity to produce it anymore. Instead, we’ve refined our approach to make the application of pressure less bloody but still equally effective.

In this piece, I will explain how the confluence of an ancient Greek paradox and a famous common‐​law maxim ravaged the Bill of Rights and destroyed the moral legitimacy of our criminal justice system in a way that should have self‐​professed constitutional originalists reaching for the proverbial muskets above their mantelpieces. (Spoiler alert: They aren’t.)

But first, let’s get back to the unfortunate Giles Corey. Swept up in the hysteria of the Salem witch trials, Corey was accused of being a “dreadful wizard” who “grievously tormented” various neighbors while appearing to them as an apparition. Arrested and brought before a judge, Corey steadfastly refused to enter a plea of guilty or innocent, which both deprived the court of lawful jurisdiction to try the case and—this part is key from the government’s perspective—the ability to dispossess Corey’s heirs following his virtually inevitable conviction and execution. What to do?

It turns out Corey wasn’t the first person to pull this stunt, and the judiciary had a special procedure for defendants who stubbornly refused to submit themselves (and their estates) to the jurisdiction of the court. It was called peine forte et dure (roughly, “pain, good and hard,”), and it involved placing the defendant under a wooden plank and piling on rocks until they relented. Simple, brutal, and effective; but—disconcertingly from the government’s perspective—not infallible. Thus, Giles Corey expired without ever entering a plea and is said to have taunted his tormentors at the end by calling for “more rocks.” As for his heirs, they got his estate—not the Commonwealth.

So what does this have to do with our modern criminal justice system? In a word, everything. Because when it comes to dealing with obdurate defendants, we use the same basic approach that was inflicted on Giles Corey, namely, the incremental addition of pressure to elicit a desired plea. And that’s where the ancient Greek paradox and the common law maxim mentioned above enter the story. We’ll take them in reverse order.

Tuesday, June 14, 2022

Miami Dade Bar Association's Criminal Justice Award goes to...

 ...Michael Caruso, the Federal Defender in our District.

Congrats to Michael, who is very well-deserving.  And I don't just say that because he's a frequent guest blogger.  

In another news, it's been a quiet Term at the Supreme Court for criminal cases.  The Court took more life out of the double jeopardy clause yesterday in Denezpi v. United States, which starts this way (per Barrett):

The Double Jeopardy Clause protects a person from being prosecuted twice “for the same offence.” An offense defined by one sovereign is necessarily different from an offense defined by another, even when the offenses have identical elements. Thus, a person can be successively prosecuted for the two offenses without offending the Clause. 

We have dubbed this the “dual-sovereignty” doctrine. This case presents a twist on the usual dual-sovereignty scenario. The mine run of these cases involves two sovereigns, each enforcing its own law. This case, by contrast, arguably involves a single sovereign (the United States) that enforced its own law (the Major Crimes Act) after having separately enforced the law of another sovereign (the Code of the Ute Mountain Ute Tribe). 

Petitioner contends that the second prosecution violated the Double Jeopardy Clause because the dual-sovereignty doctrine requires that the offenses be both enacted and enforced by separate sovereigns. We disagree. By its terms, the Clause prohibits separate prosecutions for the same offense; it does not bar successive prosecutions by the same sovereign. So even assuming that petitioner’s first prosecutor exercised federal rather than tribal power, the second prosecution did not violate the Constitution’s guarantee against double jeopardy.

This is why we need more criminal justice warriors like Michael... without them, the system would simply fall apart. 

Sunday, June 12, 2022

Roy Moore tries to get 2nd Circuit to revive lawsuit against Sasha Baron Cohen

 He will lose, as he should.  Here's the clip he is suing over:


From Courthouse News:

A federal appeals court judge got a talking-to from Roy Moore’s lawyer on Friday after questioning how, given the record of child-abuse allegations against Moore, that he can claim to be a victim of defamation.

“You’re looking at facts outside the case,” attorney Larry Klayman objected in Second Circuit arguments this morning. “You’re actually calling my client a pedophile. That’s what you’re doing in effect.”

With outside facts about his past excluded, Moore is vying to have the appeals court revive his $95 million defamation case against comedian and actor Sacha Baron Cohen over his unwitting appearance in a 2018 episode of Cohen’s limited-run satirical series “Who Is America?”

The segment featuring Moore has him talking to a counterterrorism expert who is actually Cohen in disguise, showing off the supposed newest device in Israeli military technology: a pedophile detector.

Moore walked off the set in a huff as the device beeped persistently whenever waved around him. A year earlier, the ex-Alabama judge saw his Senate run thwarted by sexual misconduct allegations involving underage girls, including one woman who accused Moore of initiating a sexual encounter when she was just 14 years old; Moore was 32.

“I’m not saying you’re a sex offender at all,” Cohen assures Moore in the clip.

Klayman, an attorney notorious for his vexatious litigation style on behalf of far-right causes, insisted in court Friday that the court must distinguish Cohen’s prank from women’s allegations against Moore because such allegations stopped short of using the word “pedophile.”

“There’s nothing more heinous than being accused of being a pedophile,” Klayman argued, adding that “people jump off buildings” over such allegations. “It’s worse than calling someone a murderer.”

Klayman, who runs an outfit called Freedom Watch, which he founded, pounced on U.S. Circuit Judge Gerard Lynch when the Obama appointee questioned that theory. “If someone has said, ‘you molested me when I was a child,’” Lynch asked, “what is the distinction?”

Urging the court to let Moore conduct discovery, Klayman says that he was only given an hour to depose Cohen and that the “Borat” actor was being fed answers during the interview.

U.S. District Judge John P. Judge Cronan tossed Moore’s lawsuit in July 2021, finding that Moore had waived the very claims he brought against Cohen in an enforceable consent agreement. Specifically, the agreement blocked claims of infliction of emotional distress and fraud, like those brought by Moore and with his wife, Kayla Moore, as well as defamation, brought by Roy Moore alone.

Two months earlier, Klayman tried to get Cronan to recuse himself, alleging “bias” and “pre-ordained favoritism” of Cohen. The judge declined to do so.

Thursday, June 09, 2022

PACER to become free?

That would be nice!  From Reuters:

Federal judiciary policymakers have approved a plan to eliminate costly fees for online docket searches amid debate in Congress about whether to force the court system to make its PACER electronic court record system free for the general public.

A newly released report on the Judicial Conference of the United States' closed-door March 15 meeting showed that the policymaking body greenlighted making PACER searches free for non-commercial users in any future overhauls of the system.

Wednesday, June 08, 2022

Letter Motions Needed in SDFL

 Letter Motions Needed in SDFL

By Rumpole

All things federal being the milieu of DOM, we sent this post for him to use.

The SDNY appears to be the only jurisdiction that endorses the use of “letter motions” as a way of attorneys communicating with the court on less serious issues. In the SDNY, each judge lists their practice differently on their website. Some judges want letter motions emailed to chambers, while others direct attorneys to file them in CMECF. In the SDNY cmecf interface, there is an option for a “letter motion” to be filed.

A letter motion is, a motion in letter format to the District Court Judge. For example:

Dear Judge XYZ,

          I write to request that the court allow my client to travel to Pyongyang, North Korea, to attend the opening of the Dear Leader’s Party Conference. My client will be traveling from July 1 to July 21. The government has deferred to the pre-trial services officer, who has indicated that as long as the client does not assist in the launching of ballistic missiles, she does not object.

          Your, obt Svt. H. Rumpole, Esq.

The letter motion is a simpler, and superior way of communicating with the court, bypassing the “Comes Now The defendant” standard motion, the use of the preamble of which Mr. Markus and Rumpole have previously debated.

Why doesn’t the SDFL use letter motions? Have our judges  ever considered the use of letter motions? Has anyone recently asked Chief Judge Altonaga to consider implementing letter motions?  Is there a downside?

A quick perusal of SDNY judge websites yields that the practice is mostly uniform, with judges listing certain motions that can be used in letter format, and others that must be filed in the regular format.

While the SDNY appears, based on a quick internet search, to be the only district that uses letter motions, the practice is efficient and should be adopted by other jurisdictions.


 Response by DOM -- I've never liked the SDNY practice of letter motions.  What is the upside of a letter motion?  You don't need "Comes Now" in a regular old motion either.  Peace and love.

Tuesday, June 07, 2022

Florida politics = dysfunctional

 The White House announced 5 new U.S. Attorney nominations yesterday.  

 But still, we do not have one here.  And from what everyone says, there is agreement between Rubio, Scott, and Biden that Markenzy Lapointe should get the nod.  But the red Senators refuse to move on anything in Florida right now, even when there is consensus.  And the WH is unwilling to get aggressive and move forward without them.  

And this is for someone that all sides agree on.  What a joke.

Who knows when we will ever see the judge slots filled...

Monday, June 06, 2022

SCOTUS in June

 Somehow there are still 33 cases left to decide at SCOTUS this month.  This morning, the Court will announce some of those 33 decisions.  You can follow all of the action at as they will live blog the cases as they come out at 10am.

The Supreme Court typically finishes issuing opinions by the end of June, but I really don't see how they do it this Term.  Maybe they won't get as long a summer vacation this year.  I still don't understand why the High Court is closed all summer... but that's just me.

Friday, June 03, 2022

Defense wins

 Congrats to Frank Rubio, Richard Klugh, and Frank's two sons for their not guilty verdict across the board for an eye doctor charged with fraud before Judge Ruiz.  The jury came back quickly.

And to a group of defense lawyers, led by Kate Taylor of the public defender's office and including Marissel Descalzo and Paul Petruzzi who obtained a dismissal before Judge Altman in a boat case for lack of jurisdiction. Here's the order.

Thursday, June 02, 2022

Judge Lurana Snow's retirement party

 Congrats to Judge Snow on her retirement.  She had her party last week, with wonderful speeches for Judge Dimitrouleas, Judge Torres, and Bruce Zimet.  Here's some photos from the fiesta:

Wednesday, June 01, 2022

"The Foolishness of Our Federal Criminal Code"

 That's the title of a piece I co-wrote with my daughter Kate Markus for the Daily Business Review.  It starts like this:

There’s been a lot of talk about overcriminalization in recent years. Prosecutors are going after folks for everything you can imagine. In one famous example, retired race car driver Bobby Unser was prosecuted by the feds for driving his snowmobile on protected federal land. Unser had gotten lost during a snowstorm and was seeking shelter. Closer to home, members of a religious outreach group were arrested and prosecuted for feeding the homeless in a Fort Lauderdale park because they violated a food sharing law.

Because our trial system has turned almost exclusively into a system of pleas (97% of cases resolve by way of plea agreement), one might think that all of these prosecutions must be justified. That could not be further from the truth. The system has made the risks of trial so dauntingwith a defendant likely to receive a sentence many times longer if he has the audacity to declare his innocence and proceed to trialthat most defendants fall on the sword and plead guilty, even if they are innocent.

The list of federal crimes has become so lengthy that it is unknown how many there actually are. This is in stark contrast to the federal criminal code in 1790, which included just 30 crimes. By the 1980s, that number was more than 3,000. Although the Department of Justice (DOJ) has not catalogued all of the crimes on the books now, there are over 300,000 statutes and regulations that carry federal criminal penalties.

Tuesday, May 31, 2022


    It's Bonus Episode time -- we've got former NACDL president Barry Pollack discussing the chicken antitrust trials, which have garnered quite a bit of press because the original trial involved 10 defendants, which hung.  Then the government decided to try it a second time against all 10 defendants even though the majority of jurors voted to acquit.  After a second lengthy trial, the jury hung again as to all 10 defendants.  The government announced it would try them a third time, which led the district judge in Denver to call in the head of the antitrust division to explain why that was the right thing to do.  The government then dismissed as to 5 of the defendants but decided to try for a third time the 5 remaining individuals.  That third trial starts next week (June 6, 2022).  The head antitrust prosecutor has said a third trial is needed because he is not part of the "chickenshit club."  Have a listen to Barry explain the twists and turns of these two very interesting criminal price-fixing trials on your favorite podcast platform -- all of which are available at our website here.

Thanks again for listening.



Hosted by David Oscar Markus and produced by rakontur
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Monday, May 30, 2022

What interview questions do you ask?

Malcolm Gladwell asks whether you know how to drive a manual transmission:

In Tyler Cowen and Daniel Gross’s excellent new book, Talent: How to Identify Energizers, Creators, and Winners Around the World, the authors suggest alternative questions for job interviews. For example: What tabs are open on your browser right now? (In my case: a draft of an upcoming Revisionist History episode, a Youtube video of a Canadian businessman who personally sponsored 50 Syrian refugees, a journal article on the merit of homework, and the Car and Driver review of the new special edition Golf R.)

Cowen and Gross think this kind of indirect question is a better way of assessing someone’s interests and curiosity than simply asking them a direct question. I agree. The standard interviewing process—with its conventional set of easily anticipated questions—is just too easy to game. (“Where do you see yourself in 10 years?” “In your chair!”)

This reminds me of a question I used for years in interviewing potential assistants: Do you know how to drive a manual transmission? If you said no, you didn’t get hired.

I know that sounds terribly arbitrary. But here’s my reasoning. It is not necessary to know how to drive a stick in the 21st century—particularly if you’re 22 years old. So the only people who do are those who are willing to take the time to master a marginally useful skill. Now why would a 22-year-old do that? One reason is that they like knowing how to do things that most people do not. Another is that they realize that the most fun cars in the world to drive are sports cars, and the most fun sports cars to drive are the ones with manual transmission, and they like the idea of being able to turn a rote activity (driving) into an enjoyable activity. I want to work with the kind of person who thinks both those things.

Interesting. I like the idea of alternate questions for a job interview.  What do you ask potential associates?  

Friday, May 27, 2022

Better Late Than Never

By Michael Caruso


Yesterday, at the behest of an 8th-grade civics class, Massachusetts lawmakers formally exonerated Elizabeth Johnson a mere 329 years after she was convicted of witchcraft and sentenced to death (thankfully, she was not executed). Johnson was 22 when she was caught up in the hysteria of the witch trials and sentenced to hang. Then-Gov. William Phips threw out her punishment, but while dozens of suspects officially were cleared, including her own mother, Johnson's name wasn't included in various legislative attempts to set the record straight. Until now.

Similarly, former President Trump used his pardon power to right very old wrongs, including the boxer Jack Johnson—convicted in 1913 of a Mann Act violation—and Susan B. Anthony—convicted in 1872 of voting fraud. (Although the Susan B. Anthony Museum rejected the pardon as she would have wanted).

The wrongly convicted and unduly punished should not have to wait that long. Currently, there are about 17,000 petitions for pardons and commutations pending. Critics like Professors Rachel Barkow and Mark Osler have assailed the modern use of the pardon power as "too often ignored or used to create calamities rather than cure them." They, along with others, recently testified at a House Oversight Committee hearing about our clemency system's issues.

And earlier this year, Attorney General Merrick Garland selected Elizabeth Oyer, a former federal public defender, and Mayer Brown partner as the U.S. Pardon Attorney. Ms. Oyer began her career as a law clerk for our very own 11th Circuit Court of Appeals Judge Stanley Marcus.

In this role, Ms. Oyer presides over the office that reviews and evaluates federal clemency applications. Earlier this month, several clemency advocates privately met with Ms. Oyer, "a rare occurrence that left them cautiously optimistic about forthcoming changes to a strained system."

For the clemency system to function, however, we need lawyers. Families Against Mandatory Minimums does excellent work recruiting, training, and assisting lawyers who want to lend a hand. It's never too late to right a wrong, but the sooner, the better.

Monday, May 23, 2022

Big Tech and Guns


By John R. Byrne

A couple of big decisions issued by the Eleventh Circuit yesterday, both authored by Judge Newson.

In Netchoice, LLC et al. v. Attorney General, State of Florida, et al., the Court handed a victory to "Big Tech," holding Twitter, Facebook, and other companies were entitled to a preliminary injunction against a Florida law that would have barred them from, among other things, "deplatforming" political candidates. The Court found it "substantially likely" that social media companies are "private actors" (and, thus, have First Amendment rights) and that many (but not all) of the law's provisions violate those rights. Read it here.

In  United States v. Ignacio Jimenez-Shilon, the Court held that a law making it illegal for illegal aliens to possess firearms does not run afoul of the Second Amendment. Judge Newsom's opinion digs into Justice Scalia's opinion in District of Columbia v. Heller, 554 U.S. 570 (2008) offers a detailed account of the history of gun rights/laws in this country. Weirdly enough, Judge Newsom also wrote a concurrence to his own opinion, laying out what he considers the right analytical framework to apply to challenges to the Second Amendment. Read it here.

Judge Newsom's Jimenez-Shilon opinion is already drawing some fire on Twitter, tying the two opinions together.

Judge Scola to take senior status in October 2023

Judge Scola is the best. I’m truly happy for him but sad for all of us. He was always fair, smart, and thoughtful. The perfect judge. 

At least we keep him till October 2023. Let’s see if the White House can get its act together and get some judges confirmed  

Sunday, May 22, 2022


I've often written about how our criminal justice system coerces pleas.  One of the reasons is the trial tax.  If you go to trial and lose, your sentence is likely to be many many times the plea offer -- sometimes more than a decade longer.  It's unjust.

Because there were almost no trials during the pandemic, and many judges were more compassionate during that time (it’s all relative), it was easy to forget about the awful trial tax in our system.

But recent sentences in our District and others are showing that there is absolutely no let up for the trial tax -- even for non-violent offenders. Most judges, who have never represented a criminal defendant, have no sense what a 5 *year* sentence does to a person, a family, a community. It’s completely devastating. 

One possible solution -- at a sentencing post-trial, judges should be told what the plea offer was.  If a plea offer was X, the government shouldn't be asking for 4X. 

Since COVID, prosecutors have also candidly told me that they are now asking for much higher than they believe is appropriate at all sentencings because they believe that most judges will vary down from their recommendation.  The typical scenario is that a prosecutor believes that a sentence of 10 years is warranted.  The defense believes 3 years is right.  The prosecutor knows that if both sides ask for those sentences, a judge is likely to give 5-6 years, so the prosecutor asks for 12 or 15 years in the hopes of getting 10.  Judges then feel like they didn't give the prosecutor everything they asked for, when they actually did just that.  

Anyway, that's my Sunday morning rant.  Sentences are on the uptick again post-COVID.  Incarceration rates are moving higher again.  While COVID remains, the compassion during the pandemic seems to be fleeting.  

Friday, May 20, 2022

"Is the Justice Department Incompetent?"

 That's the title of this extensive article by New York Magazine.  Here's how it starts out:

“I’m here to declare that we are not part of the chickenshit club.”

That announcement came last month courtesy of Jonathan Kanter, the head of the Justice Department’s antitrust division and one of the stewards of the Biden administration’s ambitious, all-purpose antitrust-enforcement agenda. Kanter was speaking at the University of Chicago and was, improbably, in good spirits following a series of high-profile losses for prosecutors in his office. There had been acquittals in separate, closely watched criminal cases in Colorado and Texas, both involving alleged collusion in labor markets, as well as a second mistrial in a much-touted criminal price-fixing case involving executives in, appropriately, the chicken industry. After the department decided to try the chicken case a third time, the presiding judge ordered Kanter, whose job leading the antitrust division’s 700 employees is the first he has ever held at the department, to fly to Denver and explain the decision to him in person.

Kanter argued that the department’s antitrust lawyers would not be deterred by the losses (which he tried, unconvincingly, to portray as partial victories). But a casual follower of the Justice Department’s performance in recent months might have detected a larger trend extending beyond Kanter’s purview overseeing the department’s civil and criminal antitrust cases.

Early this year, an appeals court reversed the convictions of two former Deutsche Bank employees who had allegedly manipulated a financial benchmark rate known as LIBOR. In March, a jury in Texas acquitted the one and only person charged in connection with the department’s investigation of Boeing following two crashes of its 737 Max jets after deliberating for just 90 minutes. A jury in Washington, D.C., acquitted two defendants who had been charged in a campaign straw-donor scheme. (As I have noted before, I used to work in the office that brought the Boeing prosecution and know some of the prosecutors, but I was not involved in the investigation. Before my time at DOJ, I worked on the internal investigation for Deutsche Bank that resulted in the LIBOR prosecution.)

Then last month, prosecutors lost the trial over the alleged plot to kidnap Michigan governor Gretchen Whitmer after a jury acquitted two of the four defendants and hung on the charges against the others. Strictly speaking, this was not a white-collar case (unless you count the fact that so many of the alleged plotters were apparently working for the FBI), but it had some rough similarities — not just a major, highly publicized case that the department tried hard to win but also one in which deterrence was a major objective.

There have been victories, too — most notably the case against Elizabeth Holmes, who was indicted in mid-2018 and convicted following a trial last year after pandemic-related delays. More recent was the conviction in Brooklyn of a former Goldman Sachs employee who participated in a massive bribery and kickback scheme connected to a Malaysian sovereign wealth fund. Outside of the white-collar realm, the department has also been exceedingly busy with the January 6 prosecutions, and whatever concerns some of us may have about the scope and pace of that investigation, prosecutors’ performance in the courtroom has been impressive.

But the slew of recent setbacks has been hard to ignore, particularly in the middle of the department’s effort to tout its white-collar enforcement record and agenda. At this moment, well into the tenure of Merrick Garland, the notion that the department’s major problem is a failure of resolve seems less compelling in recent memory than ever, prompting some legitimate questions. Among them is whether Garland’s vision for the department and his understanding of its difficulties during the Trump years is as comprehensive as it needs to be.