Happy New Year!

 I hope everyone has a great new year!

To celebrate, here are some of the best moments this year at SCOTUS, from Bloomberg:

Justice Amy Coney Barrett gave an unexpected hypothetical in a free speech fight over a “Trump too small” trademark that could have been seen as a dig at the former president who appointed her to the bench. 

Concerned about how the case could impact copyright law, Barrett asked what would happen if someone “wants to write a book called ‘Trump Too Small’ that details Trump’s pettiness over the years and just argues that he’s not a fit public official.” 

Barrett wanted to know what analysis the court would apply in reviewing whether a copyright restriction was permissible. Deputy Solicitor General Malcolm Stewart, who argued the government didn’t violate anyone’s constitutional rights in refusing to trademark the phrase, explained that copyright, unlike trademark law, has been used to foster free expression.

Judge Tjoflat keeps the judges working

 I’ve never seen an opinion start like this. Have you?

Let's Just Cut to the Chase, Please

Let's Just Cut to the Chase, Please 

GUEST POST BY MICHAEL CARUSO

Yesterday, the 11th Circuit decided U.S. v. Sotis (Mizelle (M.D. Fla.) with William Pryor and Marcus joining) and affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya.

At trial, government agent Wagner testified to his interactions with Sotis. On cross-examination, the co-defendant's counsel asked Wagner whether civil penalties were an option he could have pursued instead of criminal penalties. On re-direct, the government asked whether Wagner had seen a case with “this level of willfulness.” Sotis objected, but only to Wagner’s comparison to previous cases.

On appeal, the Court concluded that Wagner’s opinion was improper but that allowing it was not plain error. Rule 701 restricts a lay witness to testimony rationally based on the witness’s perception, which is helpful to determining a fact in issue and that is not based on specialized knowledge.  Wagner’s testimony that he had never seen so much willfulness was improper because it purported to tell the jury about Sotis’s state of mind—something to which neither he nor any other witness could testify based on his rationally based perception. Permitting his testimony was error. But "harmless." In other words, mess around prosecutors, and you WON'T find out.

The evidence ruling seems clear. Interestingly, DOJ lawyers argued on appeal that Wagner's "opinion was a rational inference based on his personal participation and observations as a special agent for the Commerce Department and therefore did not exceed the permissible bounds of witness testimony." I wonder what the lesson is here. Don't ask this type of question, or ask, and even if found to be an error, the conviction will be saved by the harmless error rule.

What also should be clear but often is not is what may happen after a party "opens the door." The prosecutors argued, and the trial judge found that Sotis had opened the door. I've always believed, however, that a lawyer cannot open the door to the introduction of inadmissible evidence. The Court didn't address this point. Perhaps the Court felt that something that should be understood didn't have to be said.

Happy Holidays all.

The blog will be very slow over the next two weeks.  

Judges, check out this order.  We hope you agree!

I'm not sure I can say it any better than the excellent Federal Magistrate Judge Andrew Edison.

I too do not want anyone to work the next two weeks, and hope that you can spend as much time as you can with family and friends. pic.twitter.com/LoS4uU3SAL

— Raffi Melkonian (@RMFifthCircuit) December 19, 2023

Alex Saab returned to Venezuela

Well this will be a Merry Christmas for Alex Saab.

He was indicted before Judge Scola in a sprawling indictment alleging FCPA and other violations.  He was sitting at FDC.  But Venezuela struck a deal with the U.S. to return up to 10 Americans in custody in exchange for Saab.  From the AP:

The Biden administration has released a close ally of Venezuelan President Nicolás Maduro in a swap for jailed Americans, The Associated Press has learned.

Alex Saab, who was arrested on a U.S. warrant for money laundering in 2020, was released from custody Wednesday. In exchange, Maduro will free some, if not all, of the at least 10 U.S. citizens who remain imprisoned in Venezuela, according to a person familiar with the situation who was not authorized to discuss the matter publicly and spoke on condition of anonymity.

The White House declined to comment.

On Friday and again on Monday, two docket entries were filed under seal in the long-dormant criminal case out of federal court in Miami, an indication that a behind-the-scenes deal was in the works.

The U.S. has long accused Saab of being a bag man for Maduro. Saab’s release would be seen as a major concession to Maduro, an authoritarian leader who is himself the target of a $15 million U.S. reward for anyone bringing him to New York to face drug trafficking charges.

The deal is also likely to anger the Venezuelan opposition, who have of late criticized the White House for standing by as the leader of the OPEC nation has repeatedly outmaneuvered the U.S. government after the Trump administration’s maximum pressure campaign failed to topple him.

 

 

Chief Justice Roberts on Justice Sandra Day O'Connor

 

Chief Justice John Roberts begins his tribute to Justice O'Connor: "It has been said that the Supreme Court is like a family, a family composed entirely of in-laws." #SCOTUS pic.twitter.com/q4E01hJjdI

— CSPAN (@cspan) December 19, 2023

Mark Meadows' Removal Claim heard in the 11th Circuit (UPDATED with opinion)

Well, I wrote this post about the oral argument, and then the Court decided the case.  That was quick!  Here's the opinion by Chief Judge Pryor, denying Meadows removal claim.  The intro ends this way: "Because federal-officer removal under section 1442(a)(1) does not apply to former federal officers, and even it it did, the events giving rise to this criminal action were not related to Meadows's official duties, we affirm."

Judge Rosenbaum concurs and describes a "nightmare scenario" (not protecting former federal officers from state prosecutions) that "keeps [her] up at night."

Both opinions are worth your read -- two of our best writers on display.  And both were podcast guests, if you want to hear more about their writing styles! :) 

***

The original post about oral argument:

 Politico covered the argument here:

A federal appeals court panel took a skeptical stance Friday toward an effort by former White House chief of staff Mark Meadows to have a federal court take and potentially dismiss the state charges pending against him for allegedly trying to tamper with the 2020 presidential election results in Georgia.

All three members of the 11th Circuit Court of Appeals panel raised sharp questions about Meadows’ argument that his role as Donald Trump’s chief of staff requires federal courts — rather than the courts in Fulton County, Ga. — to oversee the case in which he, Trump and 17 others were charged in an alleged racketeering conspiracy.

During a 50-minute oral argument session in Atlanta, the appeals judges expressed particular skepticism about Meadows’ effort to claim that his work to help Trump secure a second term even after states had certified his defeat — conduct at the heart of the charges against him in Georgia — were part of his official chief-of-staff duties.

“That just cannot be right,” said Judge Robin Rosenbaum, an appointee of President Barack Obama. She specifically cited “electioneering on behalf of a specific political candidate” and “an alleged effort to unlawfully change the outcome of the election” as examples of what would fall outside a government official’s duties.

 

Peter Park(er?) passes California bar at age...

 ...17.

 Woweee.   

He's now your friendly neighborhood D.A.

More from the ABA:

Park’s father brought up the idea of attending law school when Park was only age 13, the younger Park told the Washington Post. Park’s father had discovered that his son could apply to law school in California without an undergraduate degree if he passed the College Level Examination Program tests.

Park began studying, He passed the CLEP exams while he was still in eighth grade and began applying to law schools.

Park enrolled in the four-year online program at the Northwestern California University School of Law at the same time that he was beginning high school. Park was able to graduate high school in 2021, at the end of 10th grade, by taking the California High School Proficiency Exam. Then he was able to devote full time to his law studies.

After Park passed the bar, his father self-published a book called Fast-Track Attorney: Passing the Bar at Age 17.

Park’s sisters are 16 and 13, and they are enrolled at the Northwestern California University School of Law. Park says the older sister plans to take the bar exam in July, and if she passes, she will surpass his age record.

Park told the San Francisco Chronicle that others could also follow in his footsteps.

City of Miami Loses Again in Ball & Chain Case

By John R. Byrne 

A while back, the blog covered the 60 million dollar verdict entered against City of Miami commissioner Joe Carollo based on his actions related to the Ball & Chain restaurant/bar. But there's also a lawsuit against the City itself for the same conduct. In an order entered Tuesday, the City lost its motion to dismiss. 

Thorough discussion in Judge Altman's opinion on constitutional claims, including Substantive Due Process and Equal Protection. Will be interesting to see if the City continues to fight the case.

City of Miami Order by John Byrne on Scribd

Michael Dreeban joins special counsel in SCOTUS and other moves

 The NY Times has the interesting story here about how the Special Counsel, now led by Michael Dreeban in the Supreme Court, has asked SCOTUS to take Trump's appeal directly and bypass the court of appeals.

In other SCOTUS news, the High Court has turned away the Esformes cert petition, setting up the potential retrial before Judge Scola.

One of the main trial lawyers for DOJ, Allan Medina (son of beloved court reporter Barbara Medina), has left the government and joined Goodwin.

New magistrate judge named

Back in October, the blog broke the news that the judges had voted Randy Katz as our newest magistrate judge.  However, Randy has withdrawn his name from consideration.  My understanding is that the newest nominee is Marty Fulgiera Elfenbein, a current AUSA.  

Marty was an associate at Kirk Caldwell and clerked for Judge Bloom.  

Congratulations!

Potential Lawsuits over FSU Snub

 

By John R. Byrne

If you're a college football fan, you know about the recent travesty of FSU being snubbed by the College Football Selection Committee. Did we really need to see Alabama in another college football playoff? Although there's no fixing it now, there may be a lawsuit coming. Governor DeSantis set aside $1 million in the state's upcoming budget for a lawsuit against the College Football Committee. And Senator Scott has already issued a letter to Boo Corrigan, the Chairman of the Committee, demanding emails, text messages, and the like regarding the selection process. Even a judge in our own district, Judge Singhal, made a lighthearted reference to the snub in a recent order.

Hopefully, the Seminoles can beat Georgia and the AP can name FSU national champ. 

New Podcast episode!

 

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

Miami Spy Game

By John R. Byrne

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

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

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

Criminal Complaint by John Byrne on Scribd

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

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

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

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

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

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

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

Here's the Chief:

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

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

R.I.P.

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

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

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

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

...

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

SDFLA nominees perform well before the Senate Judiciary Committee

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

NOMINEE: Jacqueline Becerra to the Southern District of Florida

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

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

NOMINEE: Melissa Damian to the Southern District of Florida

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

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

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

NOMINEE: David Leibowitz to the Southern District of Florida

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

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

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

SDFLA Senate Judiciary Hearing this morning

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

You can watch it here.

AFPD Andrew Adler argues 3rd case before SCOTUS

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

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

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

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

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

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

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

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

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

 

Is it time to withdraw from the Federalist Society?

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

Why, you ask?

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

From the NY Times:

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

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

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

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

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

Or you could just join the American Constitution Society!

Congress and Football

 

By John R. Byrne

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

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

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

Human lawyers sue robot lawyers — and lose!

 As we all recover from post-it note gate during this Thanksgiving holiday week, this story caught my eye. And I love it. A bunch of lawyers don’t like AI and sued, saying it was involved in the unauthorized practice of law. The robot filed motion to dismiss and won! However, the judge did give leave to amend. Here’s the Reuters story. 

A federal judge on Friday agreed to dismiss, for now, a lawsuit by a small Illinois law firm that accused artificial intelligence company DoNotPay of engaging in the unauthorized practice of law.

Chief U.S. District Judge Nancy Rosenstengel in East St. Louis, Illinois said in the decision that law firm MillerKing's claims are not sufficient to give it legal standing to sue DoNotPay in federal court.

"This case pits real lawyers against a robot lawyer," Rosenstengel said, finding that the real lawyers had not shown how they were harmed.

MillerKing in March sued DoNotPay, which says on its website that it uses artificial intelligence to help consumers "fight big corporations, protect your privacy, find hidden money, and beat bureaucracy."

MillerKing, which has six attorneys who work in areas including personal injury, wrongful death and family law, claimed DoNotPay advertises and provides legal services without having a license to practice law.

Howe Comes to the Southern District

 

By John R. Byrne

Amy Howe, of SCOTUSblog and Howe on the Court blog fame, once again brought her talents to the Southern District of Florida yesterday. She speaks every fall to the South Florida Chapter of the FBA and it's always a great program. She talked about the current term, which seems to have fewer controversial cases this year. Still, big decisions coming on redistricting and the Chevron doctrine. Only Judge Huck managed to stump her during the Q & A portion of the program, asking her to identify the most humorous or under-the-radar case on the docket (she says the reporters usually have one, but drew a blank). Definitely worth seeing her when she comes back next fall.

Preet Bharara calls for prosecutors to announce when an investigation closes

This is a no-brainer in my opinion, but one that Preet himself did not do as a U.S. Attorney in New York.  From his piece in the New York Times:

Prosecutors formally advised lawyers for former Vice President Mike Pence this past June that he would not be charged for retaining classified materials after leaving office. I expect that the special counsel Robert Hur will similarly soon announce that President Biden will not face charges for his own handling of classified documents. The merits of those determinations, no less than the one to indict Donald Trump for hoarding such documents in Mar-a-Lago’s bathrooms and ballrooms, are properly debated.

Criminal investigations into holders of high office invariably raise questions about equal treatment and equal justice under the law. Is there, people ask, a double standard?

Well, there is one species of double standard and special treatment that reveals an overlooked unfairness in our justice system: It is generally only the famous and the powerful who get the courtesy of closure, who get the benefit of formal notice that the case against them is over. In too many cases and for no good reason, people never know when they are out of jeopardy.

Outside of the most high-profile cases, a prosecutor’s decision to close an investigation remains a secret — from the public, the victim, and even the target of the inquiry.

For targets who have never appeared in the pages of this paper, that means there is no news conference at the Department of Justice or letter to their lawyers to dispel the cloud of uncertainty and fear that accompanies the threat of prosecution. There is only silence. Many involved in perpetuating this purgatory — including the prosecutors themselves, as I know from my time as the United States attorney for the Southern District of New York — understand it serves no real purpose. Yet routine nondisclosure continues unquestioned.

It can, and should, stop.

Post-it Note Gate

 Okay, I think this one is really silly, but everyone seems to be talking about the two post-it notes left in the elevators at the U.S. Attorney's Office for hours last week.  Someone posted two yellow sticky notes, one that says "LaPointe has to GO!!!" and the other "Congrats on Destroying Morale, LaPointe!"  

Instead of taking them down, pictures were taken and head shaking emojis were texted around town.  

The anonymous note author did not explain where his or her (is that handwriting from a man or woman?) angst is coming from.  And I'm not sure this is the best way to express it or get things done (feel free to email me and I will post your complaints anonymously on the blog, and I will also post Mark Lapointe's response if he'd like to write one).  

Anyway, here are pictures of the two notes.

Rumpole, was this you?

Groundbreaking for Fort Lauderdale Courthouse

By John R. Byrne

Yes, we're finally getting a new federal courthouse in Fort Lauderdale. The groundbreaking ceremony was this past Wednesday. So, if you ever wanted to see a bunch of federal judges wearing hardhats and wielding shovels, this was your chance.

There's a push to name the courthouse for Judge Dimitrouleas, known affectionally as "Judge D." He's well-deserving of such an honor. Some great pictures of the event below.