Thursday, April 11, 2024

Judge Moore Finds City of Miami Engaged in Racial Gerrymandering

By John R. Byrne

Significant order entered by Judge Moore yesterday in the racial gerrymandering lawsuit filed against the City of Miami. After holding a bench trial back in January, Judge Moore ruled that the City violated the Constitution by drawing voting maps with the goal of having various districts in the City elect commissioners of certain races (specifically, three hispanic commissioners from the three majority Hispanic districts, a black commissioner from a majority Black district, and a white commissioner from a majority "Anglo" district).

The Court wrote: "[W]hether the City believed the pursuit of diversity in representation could justify racial gerrymandering is immaterial. The harm stems not from the City’s objective, but rather, from the City’s racial classification of every Miamian in pursuit of that goal. By sorting its citizens based on race, the City reduced Miamians to no more than their racial backgrounds, thereby denying them the equal protection of the laws that the Fourteenth Amendment promises." 

Order excerpted below.

City of Miami Order (J. Moore) by John Byrne on Scribd

Wednesday, April 10, 2024

Ecuador's former comptroller on trial before Judge Williams

 It's AUSA Michael Berger versus defense lawyer Howard Srebnick.  Law360 has the story on openings:

Ecuador's former comptroller on Tuesday denied accepting and laundering $10 million in bribes in exchange for eliminating fines imposed against a Brazilian company for constructing a shoddy hydroelectric plant, telling a Florida federal court he was charged with crimes because the project's corrupt manager lied to avoid prison time.

Speaking on behalf of 73-year-old Carlos Ramon Pólit Faggioni, Howard M. Srebnick of Black Srebnick PA told a jury during opening statements that his client was charged because of the "bought and paid for" testimony of an ex-Odebrecht SA executive working with the U.S. government and that the Miami real estate allegedly used to launder the bribes came from legitimate transactions by Pólit's son.

"Carlos Ramon Pólit did not launder a single dollar" and former Odebrecht executive Jose Santos "negotiated a deal like no one else on the planet Earth" to avoid going to prison over paying bribes to make heavy fines against his company go away, Srebnick said.

Pólit was charged in 2022 with conspiracy, concealing the bribes through a series of intermediaries and spending the illicit proceeds on expensive South Florida real estate, including a house in the exclusive community of Cocoplum in Coral Gables, Florida.

Tuesday, April 09, 2024

Should Adeel Abdullah Mangi be confirmed to the Third Circuit?

 The NYT has an opinion piece about the issue and starts with a story about our own Judge Raag Singhal:

In 1999, a Florida lawyer, Anuraag Singhal, represented a man convicted of gunning down a police officer. Singhal had to somehow persuade a jury that his client, Jeffrey Lee Weaver, should face life in prison rather than the electric chair, the punishment the hard-charging prosecutor sought.

“I hope you can find some love in your heart for Jeff Weaver, and I hope you’ll let him die in prison,” Singhal said, according to a report in The Sun Sentinel, the local newspaper. The article described tears rolling down his cheeks and his voice breaking with emotion as he pleaded for Weaver’s life. Singhal won the day. A divided jury recommended life in prison.

Singhal was clearly a very talented attorney and a man on the rise. He would become active in conservative legal circles, joining the local chapter of the Federalist Society. In 2019, President Donald Trump appointed him to a federal judgeship in Florida. He was confirmed that December with a bipartisan Senate vote of 76 to 17. Evidently no one raised a peep about his defense of a man who killed a police officer, nor his pivotal role in reducing the man’s sentence despite Republican posturing about protecting law enforcement.

Among the Democratic senators who voted to give Singhal this lifetime appointment were three centrists who often burnish their bipartisan bona fides and tough-on-crime credentials: Catherine Cortez Masto and Jacky Rosen, both of Nevada, and Joe Manchin of West Virginia.

So it is striking that these same three senators have come out to announce that they will not support an eminently qualified nominee of their own party’s president after Republican senators and conservative activists smeared him, first accusing him of being an antisemite and, when that effort fizzled in the face of staunch support from mainstream Jewish organizations, of being soft on crime and supporting cop killers.

This is an odd comparison.  Unfortunately and unjustly, Judge Singhal did face a lot of opposition when he first tried to become a judge.  His name went up over 15 times to the Governor for state circuit judge before he was finally appointed.  Then he distinguished himself as a judge, so the (ridiculous) issue of who he represented as a criminal defense lawyer became a non-issue (but only sort-of because Senator Nelson refused to return his blue-slip in 2018).  Second, and this is not meant to be a criticism of Mangi, but Judge Singhal ensured the Sixth Amendment rights of his client, a criminal defendant.  The criticism of Mangi seems wrong as well, but it's different than any potential critique of Judge Singhal for giving a strong closing argument for his client.

Monday, April 08, 2024

Monday news and notes

 1.  The DBR covers the tragedy involving Judge Matthewman's son.

2.  The NYT wrote about Trump's lawyer, Todd Blanche.  I had him on the podcast here, if you'd like to actually hear from him.

3.  DOJ believes it doesn't need to comply with subpoenas.  Judge Ana Reyes had a different idea.  Via Politico.

4.  Some are calling on Justice Sotomayor to resign so Biden can appoint her successor and there is not another RBG situation.

5.  Reuters: Justice Breyer is going to hear cases on the 1st Circuit.

Thursday, April 04, 2024

Another SDFLA acquittal

 This one was before Judge Rodney Smith, who granted a Rule 29 motion.  Congrats to the defense lawyers -- Sam Rabin and Jessica Duque.  (I am particularly proud of Jessica, a former student in my White Collar Seminar at UM).  

Jay Weaver of the Miami Herald covers the case here:

Two years ago, a South Florida lawyer was charged with her fiancé and others in what appeared to be a textbook conspiracy case accusing them of applying for million of dollars in federal government loans meant to help small businesses survive during the COVID-19 pandemic. Pembroke Pines attorney Mariel Tollinchi had to post a $250,000 bond, including $50,000 in cash, and wear an electronic ankle bracelet, to gain her release before trial while her liberty and law practice remained in limbo. But on Friday, Tollinchi, 37, gained her freedom when a federal judge acquitted her of fraud, money laundering and identity theft charges after prosecutors completed their side of the case during a jury trial in Fort Lauderdale. The evidence in the case was so weak that U.S. District Judge Rodney Smith granted her lawyers’ motion for acquittal on all charges before they even put on a defense. “Intent was the issue at trial, and the government failed to prove any intent on her part to defraud the [pandemic] loan program,” her attorneys, Jessica Duque and Sam Rabin, said Monday after the week-long trial. They called Tollinchi a “victim” of her former fiancé’s deception. Tollinchi’s legal victory — which kept her from being convicted, going to prison and losing her law license — followed a string of similar outcomes against almost all of the other defendants charged in the $8 million pandemic loan fraud case.


But at Tollinchi’s trial, prosecutors with the U.S. Attorney’s Office were unable to prove that Tollinchi conspired with her former fiancé, Philossaint, to file falsified applications for PPP and other loans, which were guaranteed by the Small Business Administration after Congress passed the CARES Act in March 2020. Prosecutors accused Tollinchi of fabricating loan applications for four businesses: The Technical Advantage, Ferro’s Entertainment and Production, Perfect Landscaping, and a nonprofit charity, Cinda Foundation. All of the businesses were owned by either her or her parents, according to the indictment. The loan requests were for a total of $253,865; of that amount, Tollinchi received about $142,000 and her parents the balance, according to the indictment. Prosecutors claimed that Tollinchi conspired with Philossaint to file bogus applications for the Paycheck Protection Program and the Economic Injury Disaster Loan program, including falsifying business revenues, number of employees, payroll expenses and corporate taxes. The SBA agreed to forgive the loans, which were processed by financial institutions, as long as they were used for payroll and other overhead expenses. Rabin, a veteran criminal defense attorney, said Tollinchi filed “legitimate” paperwork with her loan applications and tax records but Philossaint “doctored” them to maximize his commission fees — without her knowledge. “She didn’t see it coming,” Rabin said. His partner, Duque, said if federal authorities had investigated the case more deeply, they would have discovered that Philossaint and Tollinchi were not in cahoots. “She was absolutely a victim in all of this,” Duque said.

Tuesday, April 02, 2024

RIP David W. Matthewman (son of Judge William Matthewman)

 Just an absolute tragedy.  And such hard news to swallow.  Our thoughts go out to Judge Matthewman and his entire family during this very difficult time.  Here is the obituary:

David W. Matthewman was born in Miami, Florida and was tragically and senselessly killed at the young age of 34 in Palm Beach County, Florida. David was driving his car safely in the early morning hours of Friday, March 29, 2024, heading north in the northbound I-95 express lane near Boca Raton with his friend, Jasi, in his car. David and the young woman were both wearing their seatbelts, but a reckless wrong-way driver recklessly came driving southbound in the I-95 northbound express lane and violently crashed head-on into David’s car. David was instantly killed, the young woman seated next to him was killed, and the wrong-way driver died. This unfathomable, senseless, and preventable tragedy not only killed David and Jasi, but it has also devastated David’s entire close-knit family and the countless other people whose lives he had touched.

David was an incredibly talented artist, ceramicist, and photographer who had just returned from the NCECA 58th Annual Coalescence Ceramics Conference in Norfolk, Virginia. David often worked his artistic magic at the West Palm Beach Armory Art Center and at other art venues in South Florida. He provided hands-on ceramics classes to families, to military veterans, and to others. He created beautiful pottery and works of art. He always saw beauty in the smallest details in life. David also made incredible drone videos for real estate and other uses. David was a wonderful, kind, generous, talented young man with an incredibly beautiful soul. David graduated from Marjorie Stoneman Douglas High School in Parkland, Florida in 2008, where he was a cross country varsity athlete, and from Florida Atlantic University in 2013 with dual degrees in Studio Art and Criminal Justice. He was doing so well and was so very happy when he was tragically and senselessly taken far too soon from this earth.

David was the beautiful and much-loved son of Judge William Matthewman and Diane Matthewman of Highland Beach, Florida. David leaves behind his brother Scott W. Matthewman (Careni Lopez) of Inglis, Florida and their two children Reef and Kai, his sister Kelly D. Matthewman of Tega Cay, South Carolina, his brother Mark Matthewman (Joeylyn) and their daughter Avie of Brooksville, Florida, his uncle Keith Seidon of Fort Lauderdale and his son Michael, his uncle James Matthewman, Jr., (Marlene) and their children, Jimmy, Shawn, and Barbara Ann, as well as numerous nephews, nieces, cousins and relatives spread throughout the country. David was predeceased by his Aunt Sue Concha (Matthewman) and her son Stephen Melus, his uncle Robert F. Matthewman, his “Grandma Rosie”, Rose O. Phelan (Matthewman), his “Grandma Nana”, Dolores Seidon, his Grandfather Arnold Seidon, his Grandfather James S. Matthewman, Sr., and his step Grandfathers James S. Phelan, and Gary Weisenthal.

David was a very spiritual soul who loved the ocean, the beach, kayaking, sea turtles, snorkeling, running, and biking. Growing up he ran many 5K, 10K and other longer races with his Dad, brother, sister and Mom. He was also a hockey player and loved to watch Florida Panthers games with his Dad. He was very sweet to his Mom, often stopping by unexpectedly with orchids, pottery, coral and other treasures he had made or obtained.

On Thursday evening March 28, 2024 around 9:00 p.m. David texted his Dad to say that he was back in town and coming over for dinner that weekend with news and pictures to share. His last words to his Dad that fateful evening were “I love you,” and the last words back to David from his Dad were “I love you too”. Approximately 6 hours later, early on Friday, March 29, 2024, David was dead on I-95. Please pray for David’s soul, hug your loved ones, and teach them to drive safe and sober.

David’s family will receive friends on Saturday, April 6, 2024, from 4:00 – 8:00 p.m., with a 7:00 p.m. Celebration of Life service at the Gary Panoch Funeral Home, 6140 N. Federal Highway, Boca Raton, FL 33487. No formal burial will follow as David’s ashes will be placed at a later date into an environmentally friendly living reef which will be placed offshore of South Florida, with his family present, as he would have wanted. David also donated his organs to help others after death, as was his way in life.

In lieu of flowers, please send donations to the Armory Art Center in West Palm Beach,

CLICK HERE TO WATCH SERVICE (link will be active just before the 7:00 p.m. service time)

Professional arrangements by:
Gary Panoch Funeral Home
6140 N. Federal Highway
Boca Raton, FL 33487

In lieu of flowers, please send donations to the Armory Art Center in West Palm Beach,

To send flowers to the family or plant a tree in memory of David W Matthewman, please visit our floral store.


Reviewing the Judges

By John R. Byrne

For a lawyer, serving as a federal law clerk can be one of the most rewarding (and valuable) experiences of his or her legal career. Every lawyer I've met who has clerked in this district has raved about their experience. But it's not always so rosy. A woman named Aliza Shatzman, who clerked in D.C. state court, ending up greatly regretting her clerkship, working for a judge who not only mistreated her but attempted to derail her legal career. She's now helped create a database that will allow clerks to anonymously rate their judges. The Washington Post covers it here. Will be interesting to see how widely used this will be, including in our district.

Monday, April 01, 2024

No Shotguns Allowed

By John R. Byrne

At the end of last week, Judge Moreno sent the plaintiffs in the latest Joe Carollo/City of Miami lawsuit back to the complaint drawing board, dismissing their First Amended Complaint without prejudice. Though Carollo is already proclaiming victory in the media, it’s clear that the order was focused on pleading deficiencies. In short, use your rifle not your shotgun when drafting complaints (and proofread!). Order below. A good one to read before you file a multi-count complaint against multiple defendants in any civil case.

Order (J. Moreno) by John Byrne on Scribd

Friday, March 29, 2024

Monkey business

 Congrats to blogger John Byrne, who was part of the team who heard those two magic words -- not guilty -- before Judge Williams last week.  It was an interesting case involving monkeys... yes, monkeys:

A Cambodian official accused of illegally importing wild, long-tailed macaque monkeys into the United States that were destined for Miami was acquitted Friday of conspiracy and smuggling charges after a two-week federal trial. Masphal Kry, 47, the deputy director of the Department of Wildlife and Biodiversity for the Cambodian Forestry Administration, had been under home confinement in Virginia since his arrest in November 2022 at John F. Kennedy International Airport in New York. 

Now, Kry is back at home with his family in Cambodia. “He should never have been charged, and we are grateful to the jury and the court for seeing that justice was done in this case,” said lead counsel, Mark MacDougall, of Washington, D.C., who worked on Kry’s defense with Coral Gables attorney John Byrne. 

Kry was the only defendant named in an indictment to face trial in Miami. Seven other defendants from Phnom Penh, Cambodia’s capital, and Hong Kong, including Kry’s boss, the general director of the Cambodian Forestry Administration, are at large.

(via the Miami Herald)

Thursday, March 28, 2024

Florida and Disney Bury the Hatchets

By John R. Byrne

Disney and the State of Florida appear to have buried their respective hatchets. As we noted in a post a few months ago, Florida prevailed over Disney in a federal lawsuit arising out of the Northern District of Florida that had accused the State of retaliating against Disney for speaking out against Gov. DeSantis and certain legislation passed by the State. Disney has pressed pause on its appeal of that ruling. And now, in a settlement announced yesterday, Disney and Florida have resolved state court litigation between the parties. The Herald covers it here

The media is characterizing the settlement as victory for the State. At the Central Florida Tourism Oversight District Board Meeting, Miami-based attorney Paul Huck outlined the settlement details for the board. The YouTube clip summarizing the settlement begins at 39:30. But, big picture, the restrictive covenants that the old Reedy Creek Improvement District Board passed at the eleventh hour to saddle the new Governor-appointed board are now null and void. 

Sounds like a normalizing of relations. Here's a quote from Vice Chair of the Central Tourism Oversight Board, Charbel Barakat: “With this settlement, which is complete and significant, we are eager to work with Disney.”

Wednesday, March 27, 2024

So you want to be a Magistrate Judge?

 Well, the court is soliciting applicants for the two open spots.  A bulk email went out this morning:

The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida at Miami, Florida.  These appointments will succeed incumbents who were confirmed as United States District Judges.  The term of office is eight years.

A full public notice is posted on the Court's website at:

Interested persons may contact the Clerk of the District Court for additional information and application form.  The application form is also available on the Court's website  Applications must be submitted only by applicants personally to; no later than 11:59 p.m. on Sunday, March 31, 2024.

For many years, the culture in this District was that magistrate judges had little chance at becoming a district judge.  But that has changed.  Two of last three judges came from the magistrate bench. It will be interesting to see if that continues.

Monday, March 25, 2024

It's all about the Benjamins baby

 The Feds just raided Diddy's home in Miami, according to the Miami Herald.

Federal agents raided the Miami area home of rap mogul Sean Combs, better known as Diddy, reports say. Diddy owns a residence at 1 Star Island, which was previously owned by Gloria and Emilio Estefan and Diddy purchased for $35 million in 2021. The raid came weeks after a lawsuit alleged that Diddy was the leader of a criminal enterprise that could qualify as a “widespread and dangerous criminal sex trafficking organization.”

Sunday, March 24, 2024

"Reading the Constitution: Why I Chose Pragmatism, Not Textualism."

 That's the title of Justice Breyer's new book, and he's making the rounds promoting it.  This morning he was on Meet The Press.  Here's the NBC report:

Former Justice Stephen Breyer described the 2022 leak of the Supreme Court’s decision to overturn Roe v. Wade as “unfortunate” and sidestepped questions about whether justices had been working on a compromise ruling behind the scenes.

In an interview with NBC News' "Meet the Press," Breyer didn't say he was upset about the leak while noting that in general he tried to "avoid getting angry" when he was on the bench.

"You try to avoid getting angry or that — you try in the job — you try to remain as calm, reasonable and serious as possible. I think it was unfortunate," he said of the publication of the draft decision in the Dobbs v. Jackson Women’s Health Organization case.

Asked directly whether the justices had discussed a potential compromise to limit access to abortion at 15 weeks, Breyer told "Meet the Press" moderator Kristen Welker, "Well, you know as much about that as I do."

“The normal situation is before something is written in the conference, people in some form or other will discuss what they’re thinking of writing, not always and not identical. But there’s usually some discussion,” Breyer said of the process leading up to court decisions.

“I usually hope for compromise,” he added.


Friday, March 22, 2024

Guest Post by Mark Royero – McElrath v. Georgia (2024)

Can’t Touch This: SCOTUS Unanimously Decides That Inconsistent Acquittals Bar Retrial.     

            First, thank you to David Oscar Markus and John R. Bryne for allowing me to submit this guest post. This post will cover the Supreme Court’s recent opinion in McElrath v. Georgia, the Court’s latest decision regarding the Double Jeopardy Clause and inconsistent verdicts. This issue was the subject of the 2024 Gibbons National Criminal Procedure Moot Court Competition, where my partner Kaitlin Prece and I represented the University of Miami School of Law. I would also like to thank our dedicated coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition.

Thursday, March 21, 2024

What's going on with Judge Cannon's law clerks? (UPDATED)

UPDATE -- David Lat's original post has a number of updates and he has written "an epic" follow-up post about Cannon and her clerks here.

 The legal community is abuzz with this David Lat report that two of Judge Cannon's law clerks have resigned:

Judge Cannon has had at least two law clerks quit on her, according to multiple sources—including individuals who serve in the U.S. District Court for the Southern District of Florida, where she sits.


What does Judge Cannon have to say about clerks quitting on her? Over the past few days, I have sent multiple emails to the Public Information Office for the Southern District of Florida and to Judge Cannon’s chambers, requesting comment on reports that at least two of her clerks have departed before the scheduled end of their clerkships. I have received read receipts, but no responses (even though, in my experience, subjects are eager to warn me off bad information—for which I’m always grateful). If I do hear back, I will immediately update this post, of course.

I should be clear about what I don’t know. My sources have been circumspect so far, and despite my best efforts, I have been unable to determine precisely why these clerks quit, when they departed, and if they have already been replaced or the Cannon chambers is operating short-staffed.3

But based on my experience, I believe that once the fact of the clerks’ quitting becomes public, the floodgates will open. Details about the Cannon clerk departures will become more widely known, whether reported by me or others. Additional information about other personnel issues in her chambers—possibly involving employees other than clerks, such as judicial assistants or courtroom deputies—could emerge. So one reason I’ve decided to publish this post, despite lacking certain key details, is to prime the pump—to encourage sources to come forward with more information, and to encourage other journalists to follow up on my reporting.

Wednesday, March 20, 2024

BREAKING -- Detra Shaw-Wilder nominated to district bench


Here's the WH Press Release:

Detra Shaw-Wilder has been an attorney in private practice at Kozyak Tropin & Throckmorton in Coral Gables, Florida since 1994, rising from associate to partner. From 2015 to 2017, Ms. Shaw-Wilder was managing partner of the firm and has served as general counsel for the firm since 2017. She received her J.D. from the University of Miami School of Law in 1994 and her B.S. from the University of Florida in 1990.

A New Hope

 You may remember the case of Irfan Khan.  He was indicted back in 2011 to a lot of publicity about terrorism charges (mostly as a result of numerous press conferences that the U.S. Attorney's office held).  His lawyers, the great Michael Caruso and wonderful Sowmya Bharathi, repeatedly said he was innocent.  And yet he was detained because the prosecutors beat the terrorism drum.  

Turns out, his lawyers were right -- Khan was innocent.  Before trial, the government dropped all charges.

Khan sued, saying there was no probable cause and that the prosecution was malicious.  He's been fighting for many many years, and the case was recently tried to the bench before Chief Judge Altonaga.  She ruled for Khan, that it was malicious prosecution. 

Good for him.  And good for our Chief Judge, who isn't afraid to do the right thing.

Here's the press release about the victory:

Today, MLFA received an historic court ruling in the case of Khan v. United States as to government liability for malicious prosecution of an American Muslim.  Irfan Khan was arrested and indicted for Material Support of Terrorism in May of 2011. He spent more than 317 days in solitary confinement while his wife and children were sleeping on floors as they were forced out of their apartment due to the false allegations of terrorism against Mr. Khan.  After almost 11 months in custody, the government released Mr. Khan and dropped the charges – with no explanation or apology.   

In 2015, MLFA partnered with Morgan & Morgan, the largest plaintiff’s law firm in the country, which had brought a civil action against the United States on Mr. Khan’s behalf to hold the government accountable for their actions against Mr. Khan.  After a twelve-year fight over classified discovery and continuous obstruction by the government, in February of 2024, this case finally went to trial before Chief Judge Altonaga in Miami, Florida (1:13-cv-24366-CMA, FLSD).  Over a four-week trial, MLFA supported and participated with Morgan & Morgan’s trial lawyers to demonstrate the government’s liability.  Today, in an historic court ruling, Chief Judge Altonaga found that the government lacked probable cause in all stages of the prosecution of Mr. Khan, and that the actions of the F.B.I. agents constituted legal malice.  This is the first time in more than 20 years since 9/11 that the government has been held civilly liable for their actions in prosecuting American Muslims.  A hearing to determine the amount of financial damages awarded to Mr. Khan will be set for late summer, 2024.

 And this wouldn't be a Khan post, if I couldn't post this all-time great clip:

Tuesday, March 19, 2024

Trump sues ABC and George Stephanopoulos

The Complaint is available at this link. The case has been assigned to Chief Judge Altonaga.  Lisa Willis, from the DBR, covers the lawsuit here:

Former President Donald Trump sued ABC and network host George Stephanopoulos on Monday in Miami federal court after Stephanopoulos said on the air the former U.S. president had been found liable for rape.

Trump’s Miami legal team plans to prove the statements were defamatory.

“President Trump was never found liable for rape,” said Alejandro “Alex” Brito, of Brito PLLC.

Brito’s firm filed the defamation lawsuit in the Southern District of Florida against ABC, ABC News, and Stephanopoulos on behalf of Trump.

“[Trump] was accused [on the program] of engaging in rape, and that is, from our estimation, a clear defamatory statement that would meet the requirements of serving as a basis for a defamation per se claim,” Brito said.

The two counts in the complaint are defamation per se and defamation per quod.

During last Sunday’s show, Stephanopoulos questioned Rep. Nancy Mace on her stance as a rape victim supporting the Republican party presidential candidate and former president in light of the May jury verdict in his recent civil trial brought by E. Jean Carroll.

“Why are you supporting someone who has been found liable for rape?” Stephanopoulos asked Mace, who said she was “offended” that the host was trying to “shame me as a rape victim.”

Mace previously revealed she was raped at 16.

“We reached out to ABC and ABC News on Sunday immediately following the news reporting and asked for an apology and a retraction,” Brito said. “And rather than acknowledge that Stephanopoulos crossed the line and made a mistake and provide us with such a retraction, all ABC did was change the headline of a print of this story.”

Monday, March 18, 2024

Missing Justice Scalia

 SCOTUS ruled that "and" means "or." It's pretty wild.

The 11th Circuit, apparently more honest and less conservative than SCOTUS, previously held that and means and.

The Supreme Court case is Pulsifer and it demonstrates that today's Court is one of the most prosecution friendly in a long long time.  I'm sure Scalia would have ruled for the defendant here and I bet he would have carried a majority.   Instead, Justice Kagan takes the government's position that and means or, which is pretty devastating to thousands of prisoners who would have received relief under the First Step Act. 

Justice Gorsuch, who is trying to take over the Scalia mantle as willing to rule for a criminal defendant if that's what the text says, wrote an incredible dissent.  It's worth a read.  

Here's SCOTUSblog's take:

Justice Elena Kagan’s opinion for a sharply divided court in Pulsifer v. United States resolves an ambiguity in the provisions added to federal sentencing law in the First Step Act of 2018, coming down firmly on the side of the government. The problem involves how to read a “safety valve” in federal criminal sentencing laws, which allows defendants to avoid the often lengthy mandatory minimum sentences scattered throughout the federal criminal code. The safety valve requires the defendant to satisfy a laundry list of each of five separate rules.

This case involves the first of those rules, which assesses the defendant’s criminal history. Generally speaking, the point of the provision is that defendants with a serious criminal history are not eligible for the safety valve, and thus must serve the normal mandatory minimum sentence. Before the First Step Act, the criminal history provision excluded all defendants with more than one criminal history point; the First Step Act relaxed that provision, adopting the view that it made the safety valve unreasonably narrow. What the 2018 law substituted was a rule that involves three separate tests, which Kagan describes as testing for “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.” Treating those three tests as A, B, and C, Kagan quotes the statute’s limitation of the safety valve to a defendant who “does not have” A, B, “and” C.

The dispute in the case turns on the meaning of the “and” between subparagraphs B and C. For its part, Kagan explains, “the Government contends that the phrase … creates a checklist with three distinct conditions. [Thus], a person fails to meet the requirement … if he has any one of the three.” In contrast, the defendant contends that the phrase ‘does not have A, B, and C’ sets out a single, amalgamated condition for relief, [which] a defendant … fails … only when he has all three of A, B, and C.” Kagan ultimately agrees with the government’s harsher view: Defendants lose the safety valve if they have A, they lose if they have B, and they lose if they have C.

Thursday, March 14, 2024

Federal Judges, including Altman and Scola, head to Israel

 Looks like it’s an amazing trip.  The Jerusalem Post covers it here:

A delegation of 14 US federal judges arrived in Israel on Sunday for a week-long educational tour on the impact of the October 7 massacre and its challenges to the Israeli legal system and the laws of war.

The delegation, facilitated with the help of the World Jewish Congress, also saw the judges visit the Supreme Court of Justice and meet with Justice Ofer Grosskopf.

"We came to learn about how the Israeli legal system works," said Florida Southern District Court Judge Roy Altman, one of the organizers of the trip.

The Jewish Venezuelan-born judge—the youngest federal judge appointed in the US—wanted to know how the legal system managed to address terrorism in general and post-October 7. He noted that the United States saw a lot of new security legislation introduced since the September 11 terrorist attacks, and the discourse centered around the balance of individual rights against safety concerns.

Altman said he was interested in learning "How is Israel managing that balance?"


Florida Southern District Court Senior Judge Rober Scola said that he and the entire world were hoping for peace in the Middle East and hoped that Israelis and Palestinians would one day cease fighting over the land and achieve harmony.

On Monday, the delegation spoke to a Palestinian activist, who Scola said impressed upon him the needs required to achieve peace. He hoped that the activist was not a lone voice in the Palestinian community but represented a broader consensus.

Altman said that the judges were there to learn from all sides; in addition to hearing from the Palestinian activist, they also "heard from the acting American ambassador at the time of October 7, so we also heard the American perspective."

While he hoped to see advancement toward peace, Scola said that trust and the quest for peace were going to require the return of hostages, and it had to be appreciated that it was going to take a while for Israelis to process the trauma of October 7.

"One thing that is palpable is how devastating this attack has been to the people here," said Scola.

Tuesday, March 12, 2024

News & Notes

1.    FACDL-Miami calls for reform at the Miami SAO.  Their statement is here.

2.    There's a new federal rule to prevent forum shopping.  The NYT story:

When anti-abortion activists sued the Food and Drug Administration in 2022 seeking to overturn the approval of the abortion drug mifepristone, they filed their suit in the federal court in Amarillo, Texas, where it was all but assured that the case would be heard by Judge Matthew J. Kacsmaryk, an outspoken opponent of abortion.

Judge Kacsmaryk, the sole federal judge in Amarillo, wound up agreeing with the plaintiffs that the drug was “unsafe.” In his ruling, he invalidated the F.D.A.’s 23-year-old approval of the drug and opened a new front in the post-Dobbs reckoning over abortion rights.

The suit — and the role of Judge Kacsmaryk, who handles 95 percent of the Amarillo civil caseload — was one of the most striking recent examples of “forum shopping,” where plaintiffs to try to cherry-pick sympathetic judges.

Now, forum shopping is about to get harder.

The panel of federal judges who set policy for the rest of federal judiciary on Tuesday announced a new rule intended to curb the practice in civil cases with nationwide implications, like the mifepristone suit.

In such cases, where plaintiffs are seeking a sweeping remedy, like a nationwide injunction, the judge will be assigned at random from across the district instead of defaulting to the judge or judges in a particular courthouse.

3.    Justices Sotomayor and Barrett discuss relationships on the Court (also via the NYT):

A week after Justice Amy Coney Barrett chastised Justice Sonia Sotomayor for choosing “to amplify disagreement with stridency” in a Supreme Court decision on former President Donald J. Trump’s eligibility to hold office, the two women appeared together on Tuesday to discuss civics and civility.

They gave, for the most part, a familiar account of a collegial court whose members know how to disagree without being disagreeable.

“We don’t speak in a hot way at our conferences,” Justice Barrett said, referring to the private meetings at which the justices discuss cases. “We don’t raise our voices no matter how hot-button the case is.”

Justice Sotomayor, who usually gives a sunny description of relations between the justices, registered a partial dissent.

“Occasionally someone might come close to something that could be viewed as hurtful,” Justice Sotomayor said. When that happens, she said, a senior colleague will sometimes call the offending justice, suggesting an apology or other way of patching things up.

Similar interactions can happen if a draft opinion is too sharp, she said. “There is dialogue around that, an attempt to find a different expression,” she said.

4.    The U.S. Marshals want more $$ to protect the Justices.  Via Bloomberg:

The US Marshals Service is seeking $28 million to staff permanent protective details for the Supreme Court justices’ homes, a task it says is straining agency resources nationwide, according to a Justice Department fiscal 2025 budget proposal.

The Marshals Service—which provides protection for members of the federal judiciary—has been temporarily deploying deputy US marshals from each of the country’s 94 judicial districts to handle the 24/7 security for the justices’ nine main residences, plus one vacation home, according to budget documents published Monday.

In fiscal 2023, 23% of deputy US marshals supported at least one residential protection rotation at a justice’s home lasting two to three weeks, according to the budget document. The request says that the service currently sends each new graduating class of deputy US marshals “immediately” to the justices’ homes, where they work for 75 days.

The around-the-clock protection began at the request of Attorney General Merrick Garland in May 2022, after the leak of a draft opinion ahead of the court’s overturning of the constitutional right to abortion, the Marshals said.

The Marshal Service said that, as it deals with other security requests tied to “high-visibility” cases, it needs permanent staff to secure the homes. The service said that full-time personnel is preferred, especially those with specific training who can work toward “the best outcome if an attack or other threat event should occur.” It also cites “the extreme level of impact to the government and the nation if the Justices are not properly safeguarded” in making the request.

Sunday, March 10, 2024

What should happen to prosecutors who commit misconduct?

The blog has addressed this question a bunch of times and it's time to ask it again in light of what happened before Judge Wolfson in state court.  Here's the AP coverage, and Rumpole covers it here.  

Although it is an epidemic in both systems, my sense is that prosecutorial misconduct happens less frequently in Florida state court than in federal court, mostly because Florida has depositions and more open discovery.  Do you agree?

Also, when it does happen, judges are more likely to call it out in state court and there are more immediate consequences.  In this case, the prosecutor resigned.  And Kathy Rundle issued a statement.  When does that happen in fed-land?

Much more needs to be done in both systems if there's going to be a real deterrent. 

Friday, March 08, 2024

Your Friday moment of Zen

 Judges are always proud of their law clerks.  But imagine the pride when you hear that your two former clerks are arguing against each other in the 11th Circuit.  Here's Ariel Lett and Zach Vosseler, who both clerked for Judge Gayles, after their argument before the appellate court.

Wednesday, March 06, 2024

Judge Melissa Damian has been sworn in (UPDATED)

That's her with her children and Chief Judge Altonaga.

That means all three new judges are in and working.  Congratulations again to all three!

Cases will now start getting transferred.

Let the fun begin.

Update with a picture of the swearing in of David Leibowitz, with his wife and son, by Judge Marcus.  Judges Altonaga, Moreno, and Jordan were also present  

Tuesday, March 05, 2024

You won't believe this total screw up in the Trump case yesterday from SCOTUS

UPDATE -- check out Robert Kuntz' comment in the comment section, theorizing that the metadata debacle wasn't incompetence but was intentional.  I doubt it because it would not surprise me for a second that SCOTUS just does not understand basic tech issues.  Your thoughts?

 It's really hard to believe, but the Supreme Court forgot to wipe the metadata from the Trump opinion that came out yesterday.  Internet sleuths found that the three liberal Justices' "concurrence" actually started out as a partial dissent by Justice Sotomayor.  Slate tells the story here:

The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents. But the metadata tells a different story. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. In the metadata of the link to the opinion posted by the court, however, this opinion is styled as an opinion concurring in part and dissenting in part, authored not by all three justices but by Sonia Sotomayor alone. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present.

What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. The court, after all, scheduled the opinion’s release only one day earlier, on Sunday afternoon, evidently to hand it down before Tuesday’s Colorado primary. Moreover, the justices did not take the bench to announce the opinion, as they usually do—probably because they had not all planned to be in D.C.—further proving that it was a last-minute release. The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?

In other news, the 11th Circuit bench-slapped DeSantis and Florida for passing a law called the Stop W.O.K.E. Act that prohibited woke mandatory workplace training.  It obviously violated the First Amendment.  Per Judge Grant, joined by Wilson and Brasher:

 This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale. The State of Florida seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to. This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment. But the state insists that ordinary First Amendment review does not apply because the law restricts conduct, not speech.

We cannot agree, and we reject this latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.  

Monday, March 04, 2024

Eleventh Circuit Votes En Banc to Consider Forum Designations

By John R. Byrne

For you First Amendment scholars out there, the Eleventh Circuit just granted re hearing en banc in McDonough v. Garcia, 90 F.4th 1080, 1086 (11th Cir. 2024). The case involved a community gadfly-type who was barred from attending Homestead city council meetings. 


In the opinion, Judge Grant surveyed Supreme Court and Eleventh Circuit cases discussing the four types of forums--traditional public forums, designated public forums, limited public forums, and non-public forums. The panel, seemingly begrudgingly, ruled that city council meetings fell into the more speech friendly "designated public forum" category, reversing the district court's grant of summary judgment to Homestead. But it seems like the Eleventh Circuit may be interested in moving those meetings into the less speech friendly "limited public forum" bucket (meaning the city can restrict speech so long as those restrictions are viewpoint neutral and reasonable).


Attached is the panel opinion, which is a must read if you're a law student about to take the final in your First Amendment class.

McDonough by John Byrne on Scribd