New judge update (NUMEROUS UPDATES)

1. Jackie Becerra is up for a full vote at 11am. UPDATE -- Becerra has been confirmed 56-40. 

Thursday update -- Judge Becerra was sworn in today after President Biden signed her commission. 

2. David Leibowitz is expected to be up for a full vote at 2pm. UPDATE -- Leibowitz has been confirmed 64-33.

3. Melissa Damian is expected to get a cloture vote next week. UPDATE -- Actually, it will be this week.  Debate ends Wednesday, and full vote Thursday. SECOND UPDATE -- the Senate is moving quickly. Damian is scheduled for final floor vote at 5:30 today (Wednesday)

Third Update -- Damian has been confirmed 77-20. 

Congrats to all three new judges!!

“As Hyman Roth said, ‘This is the business we have chosen.’‘’

 That was Judge Bob Scola at the plea and sentencing of Philip Esformes.  The Herald covers it here:

A South Florida businessman pleaded guilty on Thursday to stealing millions of dollars from the taxpayer-funded Medicare program, capping a long-running healthcare fraud case marked by a commutation of his initial 20-year sentence by President Donald Trump in late 2020. 

Philip Esformes, who formerly lived in Miami Beach while running a chain of skilled-nursing and assisted-living facilities, showed no emotion as a federal judge spared him from going back to prison but imposed tens of millions of dollars in financial penalties reflecting his ill-gotten gains. 

Other than acknowledging his criminal activity as a healthcare operator who paid and received bribes in exchange for Medicare patients, Esformes said little during his change of plea hearing in Miami federal court and didn’t respond to a reporter’s question afterward. 

The plea agreement was reached earlier this month between the Justice Department and Esformes in one of the nation’s biggest Medicare fraud cases. Despite Trump’s commutation of his initial prison term, Esformes faced a potential retrial on the main healthcare fraud conspiracy count and five related charges from his first trial in 2019 because a Miami federal jury deadlocked on those offenses while finding him guilty on 20 others. The Justice Department vowed to retry Esformes as prosecutors negotiated a plea deal behind the scenes with his defense lawyers.

U.S. District Judge Robert Scola highlighted the “unusual” circumstances of Esformes’ healthcare fraud case, revealing for the first time what he thought about President Trump’s commutation of Esformes’ sentence after he had only served 4 1/2 years, including his time in detention after his arrest in July 2016. 

“I can’t say that I was not disappointed when his sentence was commuted by the president,” Scola said, while pointing out that under the Constitution a president has the prerogative to grant clemency petitions. 

Then, referring to a mob boss’ famous line in the Godfather II movie, the judge noted: “As Hyman Roth said, ‘This is the business we have chosen.’"

Two new Magistrate Judge positions opening (hopefully!)

 From the court's website; applications are due 3/31.

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 are expected to be 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:
https://www.flsd.uscourts.gov/.

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 https://www.flsd.uscourts.gov/.  Applications must be submitted only by applicants personally to; FLSD_magistratejudgerecruitment@flsd.uscourts.gov no later than 11:59 p.m. on Sunday, March 31, 2024.

Update on new judges

 I'm told that Jackie Becerra and David Leibowitz will get floor votes as early as next week. They should both get sworn in shortly afterwards. Whoever is sworn in first will get the open Miami seat with the other judge starting out in Ft. Lauderdale. I'm also told that Melissa Damian will be in the next batch right behind them, maybe a few weeks away. Those transfer orders will be flying across CM/ECF! 

Maduro, Pardons, and Sentence Reductions

By John R. Byrne

President Biden may have pardoned Alex Saab, a Venezuelan businessman and Maduro supporter who conspired with others to inflate the price of food and medicine during a hunger crises in Venezuela. But some of his co-conspirators were left behind. Judge Ruiz recently granted one of those co-conspirators a hefty sentence reduction, noting his cooperation and contrasting his situation with others like Saab who had "skipped town." The Associated Press covers it here.

Apparently the pardon of Saab was part of a goal "to improve relations with the OPEC nation and pave the way for freer elections." 

Bonus Podcast Episode -- Judge Nancy Abudu

Judge Nancy Abudu being sworn in as our newest 11th Circuit judge I am very excited to share this bonus episode with you -- an interview with our newest 11th Circuit Judge, Nancy Abudu. I think you will be impressed with how open and humble Judge Abudu is, not to mention how smart and quick-witted.  I had never met or spoken to her before, and it struck me how likable and nice she was! You can access it on Apple, Spotify, or any other platform from our website here. You'll recall we've had other 11th Circuit judges on the show before, including Chief Judge Pryor and Judge Rosenbaum, as well as district judges Charles Breyer, Jed Rakoff, and former judge John Gleeson. If I was putting together a Supreme Court, these six would be a pretty good start. Anyway, I hope you enjoy the episode with the terrific Judge Nancy Abudu. Thank you! --David   Hosted by David Oscar Markus and produced by rakontur

Some questions about Fani Willis and the defense motion:

1.  What did you think about Fani Willis' demeanor on the stand?

Fani Willis: "I probably had some choice words about some of the things that you said that were dishonest within this motion. I don't know that it was a conversation, as you know, Mr. Wade is a southern gentleman, me not so much." @Acyn pic.twitter.com/SDiwAD6GRs

— The Intellectualist (@highbrow_nobrow) February 15, 2024

2.  What, if anything, should the Court order as a result of her affair with special prosecutor Nathan Wade?

Nathan Wade admits to having had sexual relations with Fani Willis while trying Trump in court. WATCH pic.twitter.com/UyttJzGA0F

— Simon Ateba (@simonateba) February 15, 2024

3.  If Trump wasn't the defendant, would you answer to #2 be different?

Will Second Thoughts Unwind Verdict? (UPDATES WITH BREAKING NEWS)

Breaking News Update:  Looks like we will have some new judges pretty soon as the Senate is moving forward.  From its Twitter account this morning:

Vote scheduled: At 5:30pm, on Monday, February 26th, the Senate will proceed to a roll call vote on the motion to invoke cloture on Executive Calendar #468 Jacqueline Becerra to be United States District Judge for the Southern District of Florida.

— Senate Cloakroom (@SenateCloakroom) February 13, 2024

It also shows that Schumer filed cloture for David Leibowitz.  I assume all three will be moving forward on the same timeline but I will update that as I get information.

Second update -- Looks like Becerra and Leibowitz re up for unanimous consent this Friday, and all three nominees are still listed on the Senate calendar here.

Original post: By John R. Byrne

You'd think this fact pattern has come up a few times in SDFLA given the sheer number of criminal trials that are held here. Jury renders verdict. Court polls jurors who all confirm verdict. Then juror (or jurors) contact Court after rendering verdict saying they really didn't believe in their verdict. 

Judge Williams is currently dealing with just such a fact pattern. Last Thursday, a jury convicted a former British Virgin Islands premier--Andrew Fahie--of conspiring to import cocaine. Then two jurors contacted the Court to express misgivings. Herald covers it here.

News & Notes

 1.  Did the Special Counsel's office overreach by saying that Joe Biden has a bad memory?  From Politico:

The special counsel investigating President Joe Biden’s handling of classified documents has concluded that no criminal charges are warranted in the matter and said they wouldn’t be even if the Department of Justice didn’t have a policy barring the prosecution of sitting presidents.

That conclusion was revealed in a 345-page report that the Justice Department released on Thursday.

But while the report withheld condemnation of Biden on legal grounds, it presented a harsh portrait of his conduct and mental faculties. Biden improperly took classified material related to the 2009 Afghanistan troop surge and shared classified information with the ghostwriter of his 2017 memoir. The report also includes photos of classified documents in insecure places, including a cardboard box in Biden’s garage and a filing cabinet under his TV.

In the report, Special Counsel Robert Hur, a well-respected former U.S. Attorney, explained the president’s “lapses in attention and vigilance demonstrate why former officials should not keep classified materials unsecured at home and read them aloud to others, but jurors could well conclude that Mr. Biden’s actions were unintentional.”

But he said that Biden would make a defense that many jurors would find sympathetic.

“[A] trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” reads the report.

2.  Is Justice Jackson going to side with President Trump in the Colorado case?  From Slate:

If there was any surprise on Thursday, it was Justice Ketanji Brown Jackson’s embrace of Mitchell’s main theory that the president is not an “officer” of the United States, so Section 3 does not apply to him at all. Jackson pointed out, correctly, that the amendment lists specific positions (like senator) from which insurrectionists are disqualified and does not mention the president. “Why is that?” she asked Murray. “And if there’s an ambiguity, why would we construe it … against democracy?” Jackson suggested that the amendment was “about preventing the South from rising again” and was intended to prevent Confederates from prevailing in “local elections” involving “local concerns.” Doesn’t it seem, she mused, that the Framers excluded the presidency because of the “troubling potential disuniformity of having different states enforce Section 3 with respect of presidential elections”?

To be clear, Jackson’s argument mirrored that of professor Lawrence Lessig in Slate, not the bizarre fringe hypothesis about a secret constitutional code distinguishing office and officers. (Only Justice Neil Gorsuch poked at that idea, and even then with little enthusiasm.) Jackson’s fundamental concern mirrored that of Roberts and Kagan: Letting states disqualify federal candidates would create a patchwork of 50 wildly different regimes, handing a few swing states the authority to decide each presidential election. Sotomayor eventually gestured toward this fear as well, though she sounded genuinely torn, more so than her left-leaning colleagues. She pummeled Mitchell over his reliance on Griffin’s Case, his departure from the constitutional text, and his distortions of history. If any justice dissents, it will be Sotomayor. Yet she, too, can be a team player when called upon. And it is easy to envision the justice signing on to an opinion for Trump to create the impression of consensus.

 3.  Is the federal prison system in crisis?  From the Hill:

Due to officer shortages, other BOP employees including nurses, teachers, maintenance workers, and counselors are regularly pulled away from their main duties to fill in for officer vacancies. This practice, known as augmentation, affects the safety of both staff and inmates. The added workload and stress can lead to burnout, as individuals are managing multiple responsibilities without proper support. Pulling employees away from their regular duties also reduces inmate access to medical staff, education programs, and rehabilitation services and hampers our ability to fulfill the requirements of the First Step Act, which Congress passed in 2018 to improve an inmate’s eligibility for early release.

Ensuring everyone’s safety inside the prison walls is a major factor behind the use of special housing units, also known as restrictive housing. These units serve various purposes in prisons, including protecting vulnerable inmates and isolating dangerous ones. As BOP Director Colette Peters acknowledged while testifying before a House subcommittee in November, a large portion of inmates assigned to special housing units are there voluntarily for their protection. The pressure to limit or eliminate the use of these housing units has had a negative effect on prison security, making it even harder to retain officers.

Outside of staffing shortages, another major challenge facing BOP is the failing condition of its facilities due to lack of investment in maintaining them.

Hawaii Supreme Court says U.S. Supreme Court doesn't know what it's talking about

 Oh, you gotta like it when the states say the feds are messing things up.  This time it's about guns.  From Reuters:

The Hawaii Supreme Court has upheld the state's laws that generally prohibit carrying a firearm in public without a license--and in the process criticized the conservative-majority U.S. Supreme Court's rulings that have expanded gun rights.
Justice Todd Eddins wrote in a unanimous 5-0 decision on Wednesday that under the U.S. Constitution's Second Amendment, "states retain the authority to require individuals have a license before carrying firearms in public."

The court, comprised of three appointees of Democratic governors and two Republican-appointed judges, said it disagreed with the U.S. Supreme Court's recent rulings interpreting the right to keep and bear arms under the Second Amendment.

It expressed that disagreement as it interpreted a near-identical provision of the state's constitution which says: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Here's the opinion, which even has a quote from The Wire:

As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.  “The thing about the old days, they the old days.”  The Wire: Home Rooms (HBO television broadcast Sept. 24, 2006) (Season Four, Episode Three).

And the Court explains how the feds interpretation "clashes with Aloha spirit:"

In Hawaiʻi, the Aloha Spirit inspires constitutional interpretation.  See Sunoco, 153 Hawaiʻi at 363, 537 P.3d at 1210 (Eddins, J., concurring).  When this court exercises “power on \behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people” we “may contemplate and reside with the life force and give consideration to the ‘Aloha Spirit.’”  HRS § 5-7.5(b) (2009). The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. 

Being a Supreme Court Justice in Hawaii seems like a pretty good gig.

Trump heads to SCOTUS

Big argument at 10am this morning for the future of our country. Politico dives into the six actual legal questions that are presented here:

Just 109 words.

Whether Donald Trump can legally return to the White House will come down to how the Supreme Court interprets two rarely-invoked sentences written more than a century and a half ago as a battle-torn nation sought to recover from the Civil War.

Those two sentences make up Section 3 of the 14th Amendment, known colloquially as the insurrection clause. And on Thursday, the justices will publicly grapple with their meaning, as the court hears oral arguments on whether the provision disqualifies Trump from holding office again.

Colorado’s top court, in a bombshell decision in December, said Trump is indeed ineligible because of his efforts to subvert the 2020 election and his role in inciting the violent attack on the Capitol on Jan. 6, 2021. Scores of similar challenges are pending around the country.

Most legal experts expect the court — which is controlled by a six-justice conservative majority, including three of Trump’s own nominees — to overturn the Colorado decision and keep him on the ballot. But it’s far from clear what route the court might take to reach that result.

The justices have many options, ranging from a broad declaration that Trump is not an insurrectionist to a hyper-technical interpretation that a key phrase in the insurrection clause does not apply to Trump at all.

The argument begins at 10 a.m. EST, and live audio (but no video) will be available. Here are the key questions the justices will likely grapple with.

Does the insurrection clause apply to Trump?

Trump’s leading argument in the politically charged case is a semantic one: The president, he says, is not “an officer of the United States.” The reason that’s important is that the insurrection clause applies only to certain types of officeholders who took an oath to “support the Constitution” and then engaged in insurrection. In Trump’s case, the only way for the clause to apply is if he took such an oath as an “officer of the United States” when he was sworn in as president.

“I’ll be 70 years old in a few months and it just seemed like the perfect time for me to step aside and make room for someone younger to have an opportunity to serve on the Eleventh Circuit.”

 That's Judge Charles Wilson in his interview with the DBR, available here, about taking senior status (which this blog broke at this post).  Here's a snippet of the interesting article:

Following law school, Wilson served as a law clerk for Judge Joseph Hatchett, the first Black judge on the U.S. Court of Appeals for the Fifth and Eleventh circuits. Around that time, he also met his wife, with whom he would have two children. From there, he engaged in private practice in Tampa for five years and earned accolades such as the most productive young lawyer by the Hillsborough County Bar Association.

“I practiced whatever paid the rent,” Wilson recalled. “I hung out my shingle and it was probably the best thing I could do in my career. I tried civil and criminal cases to conclusion before juries in federal and state courts. I had a general practice. I provided representation to clients in just about any case. It was a great background for a judicial career.”

Wilson went on to devote himself to public service and was later appointed as a U.S. magistrate judge in the Middle District of Florida. Then, following his recruitment by Janet Reno, the U.S. attorney general, Wilson was appointed by President Bill Clinton to serve as the U.S. attorney for the Middle District of Florida.

In September 1999, Wilson was sworn in as an Eleventh Circuit judge following his appointment by Clinton to fill the vacancy created by Hatchett’s retirement.

Wilson said that one of the lessons he imparts to his law clerks is how to conduct themselves as young lawyers. Wilson said he applied three times to serve as a federal district court judge, landed an interview the third time, but was ultimately not selected.

“I just kept my head down and worked hard and earned a reputation in the community,” Wilson said. ”Several years later I was selected to serve as a judge on the U.S. Court of Appeals. And there I was reviewing decisions by the district judges who were appointed when I was not selected as a district judge.”

Both Parties in Ball & Chain Litigation Claim Victory

By John R. Byrne

The City of Miami has been dealing with quite a bit of litigation in recent years, including defending against claims that the City helped Commissioner Joe Carollo exact revenge against political opponents and critics. The latest lawsuit, filed by businessmen Bill Fuller and Martin Pinilla, named a bunch of City employees as defendants, including City Attorney Victoria Méndez and City Manager Arthur Noriega. 

Judge Moreno held a status conference on Friday, ultimately ordering the Plaintiffs to file an Amended Complaint. After the Court's order, both sides claimed victory to the press, with the City asserting that the Court suggested that "plaintiffs stick to the facts instead of making jury arguments in their complaint" and counsel for Fuller/Pinilla highlighting that Judge Moreno was "helpful and supportive" and had given him the opportunity to include more specific allegations against the City.

A lot more to come in this one. Herald covers it here.

DeSantis Beats Disney Retaliation Suit

By John R. Byrne

Governor DeSantis scored a victory yesterday in the Northern District of Florida. Judge Allen Winsor dismissed Disney's First Amendment retaliation lawsuit against the Governor and the directors of the newly constituted Central Florida Tourism Oversight Board.

Winsor held that Disney lacked standing to sue DeSantis, reasoning that Disney's asserted injury--lack of control over the special improvement district--is not "redressable" because the Court cannot give Disney that control back. Windsor wrote: "That injury would exist whether or not the Governor controlled the board, meaning an injunction precluding the Governor from influencing the board would not redress Disney’s asserted injury."

As to the Board, including its Vice Chair Charbel Barakat, Winsor held that Disney failed to allege a cognizable First Amendment retaliation claim. In short, where, as here, a statute was facially constitutional, it is irrelevant what motivated its passage. Because the Florida legislature has the power to determine the structure of Florida's special improvement districts, Winsor explained, it may exercise that power however it sees fit (retaliatory motives or not). The Court acknowledged exceptions for statutes involving race, religion, or those designed to regulate speech. But this wasn't such a statute.

The order, which Disney plans to appeal, is excerpted below.

De 114_Disney Dismissal Order by John Byrne on Scribd