Congrats to Judge Robin L. Rosenberg

She was named director of the Federal Judicial Center.  From the Supreme Court website:

Chief Justice John G. Roberts, Jr., announced today that the Board of the Federal Judicial Center has selected United States District Judge Robin L. Rosenberg to be the twelfth director of the Federal Judicial Center.

Chief Justice Roberts, who chairs the nine-member Board of the Center, stated, “The Board selected Judge Rosenberg from a number of outstanding candidates. Judge Rosenberg is an experienced judge with a deep interest in education and research and a demonstrated commitment to the Center’s mission. The Board is confident that Judge Rosenberg will be a worthy successor to John Cooke, whom I thank for his seven years of dedicated service as the Center’s director.”

Upon being notified of her selection, Judge Rosenberg said, “I am honored to be selected and grateful for the opportunity to serve the Center and the judiciary in this new role. I strongly believe in the Center’s initiatives and its staff and will work tirelessly to support both as the director.” She plans to assume her new duties in August.

Pretty cool!  

It's unclear whether this will open up a spot in our District or not.  I've heard conflicting views.  We shall see. 

Guest Post By Sydney Stark and Adam Stolz – United States v. Delligatti (2025)

Delligatti And The Cost of Doing Nothing:  Why Failing to Act Means Using Physical Force Under 18 U.S.C. § 924(c), by Sydney Stark

First, thank you to David Oscar Markus and John R. Byrne for allowing me to submit this guest post. This post will cover the Supreme Court’s recent opinion in United States v. Delligatti, which was the subject of the 2025 Gibbons National Criminal Procedure Moot Court Competition, where my partner, Itiel Wainer, and I represented the University of Miami School of Law. I would also like to thank our devoted coaches, Adam Stolz and Luis Reyes, for their guidance and support throughout the competition and beyond.

    Sometimes the most violent crimes arise from refusing to act at all. The Supreme Court’s recent decision in United States v. Delligatti held as much, concluding those crimes that can be committed by omission qualify as “crimes of violence” under 18 U.S.C. § 924(c). In other words, doing nothing is still using physical force under certain circumstances as far as § 924(c) is concerned.  

    Delligatti is the Court’s latest decision in a saga of cases interpreting § 924(c), which imposes a mandatory sentence to be consecutively served by an individual found to use or carry a firearm during or in relation to a crime of violence (or drug-trafficking offense). Per the statute, an offense qualifies as a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” § 924(c)(3)(A). The next layer, whether a given crime carries such an element, has been the bane of many jurists in recent years. That’s in large part due to the controversial “categorical approach” federal courts are constrained to apply to determine whether an offense qualifies as a crime of violence. Under that framework, courts must focus solely on whether the statutory elements of the crime entail the use, attempted use, or threatened use of physical force rather than whether the defendant’s actual conduct involved such physical force. If an offense can conceivably be committed in a hypothetical scenario without the “use, attempted use, or threatened use of physical force,” it does not qualify as a crime of violence subject to § 924(c). The issue presented in Delligatti was whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

    The facts in Delligatti are reminiscent of a classic mobster movie. But all we need for this blog post is the following storyline: Salvatore Delligatti, an associate of the notorious Genovese crime family, was convicted in federal court of attempted murder under the Violent Crimes in Aid of Racketeering (VICAR) statute. By virtue of the VICAR statute, his conviction rested on New York’s second-degree murder law, which is committed when one intentionally causes the death of another person. N.Y. Penal Law Ann. § 125.25(1). Because New York permits criminal liability through either a voluntary act or an omission, Delligatti argued that second-degree murder does not necessarily (i.e., categorically) involve the “use of physical force” and therefore falls outside § 924(c)’s definition of a crime of violence. After all, how could doing nothing amount to the act of using physical force? On the other hand, how could attempted murder not be legally categorized as a crime of violence? The Court took up this logical labyrinth and issued a decision last month on March 21, 2025. 

    The Supreme Court disagreed with Delligatti. In a 7-2 decision penned by Justice Thomas, the Court held that “the knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the ‘use’ of ‘physical force’ against another person within the meaning of § 924(c)(3)(A).” Relying on United States v. Castleman, 572 U.S. 157, the Court reaffirmed that intentionally causing bodily injury always involves the use of physical force, even when accomplished by omission. Because the predicate offense (NY’s second-degree murder statute) requires an intent to cause death, the Court concluded it necessarily has “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 

    Clarifying the scope of a crime of violence, the opinion explained how an omission can nevertheless qualify as using physical force. A defendant who has a legal duty to act but deliberately fails to do so with the intent to cause bodily injury or death still “uses” “physical force” “against the person or property of another” under the law. First, “physical force” encompasses any force that causes injury or death, whether applied directly or indirectly. Second, a person “uses” physical force when they deliberately make the force their “instrument” to cause harm. Finally, “against the person or property of another” requires only that another person be the “conscious object” of the force.

    To illustrate, the Court provided a chilling, extreme example: “a mother who purposefully kills her child by declining to intervene when the child finds bleach and starts drinking it makes ‘use’ of the bleach’s poisonous properties to accomplish her unlawful end.” In other words, inaction can be just as deliberate and violent as an affirmative act. 

    Not all justices were on board. The dissent, written by Justice Gorsuch and joined by Justice Jackson, accused the majority of stretching the ordinary meaning of “use of force.” It painted a stark picture: if a lifeguard intentionally lets a swimmer drown, the inaction may be morally reprehensible and even criminal—but has lifeguard has actually “used” physical force? The dissent said no. 

    The Court’s ruling in Delligatti reinforces that a “crime of violence” under federal law is not limited to overt acts—deliberate inaction with intent to harm qualifies as well. Whether through an affirmative act or omission, those who intend to cause bodily injury or death fall within the statute’s reach. 

RIP Michael Tarre

  A really good guy. I'll miss Michael, who always had a funny comment or story when I saw him. Joel Hirschhorn wrote this amazing and touching tribute to him on the listserv:

Michael Tarre was my best friend ever since the day I met him on the last  Friday in April, 1969. I had filed a Motion to Suppress the seizure of two joints ( in those days a felony). Michael was the assigned prosecutor. His supervisor, Barbara Schwartz. The Judge, Jack Turner. 

 The Motion was to be heard that morning. Michael came over to me just before Court started, introduced himself:

       “Mr. Hirschhorn, I am Assistant State Attorney Michael Tarre. I have read your  

        Motion and I believe it is well taken. I am going to nolle pros [whatever that

        meant  as I had been practicing all of 16 month at the time].”

      I asked Micheal what that meant. He explained: “Case over.” I was overjoyed. Could not believe my luck. I had earned my $750.00 fee. Thrilled, I invited Michael to dinner that night [today you might get indicted for that]. My then wife was less than thrilled because  she was 8 months, three weeks pregnant. Michael and I struck it off immediately during dinner. 

   A week later my eldest son, Bennnett, was born (hence I remember when I met Michael). Of course I had to invite  my new friend Michael to Bennett’s bris. Two and half years later, my other son, Douglas, was born. And of course I invited  Michael to be His godfather, a role Michael took very seriously. And those  of us who were privileged to knew Michael outside his outstanding professional life, recognized how steadfastly and uniquely devoted he was to his sister, Bonnie. 

 Michael had one of the best senses of humor known to man. Sharp, often stinging, but alway well meaning, witty and of course very straight faced funny. For my 30th birthday, March 13, 1973,  Michael gave me an elaborately wrapped and oversized package. Taped to the outside of the gift wrapping was a note: “To the biggest clown in circus court.” What was wrapped inside?, A brand spanking new unicycle. I damn near broke my neck trying to ride it. I can still hear Michael  cackling with laughter.

 Then there were the dozens,  and I mean dozens,  of times Michael  and I tried cases together in Florida, North Carolina  and other States. Michael was easily the most underrated lawyer in the Criminal Bar. Quiet,  but very effective, rock solid, brilliant strategist, sarcastic, humorous. Impossible to adequately describe how great it was to be in the same courtroom in a trial with Michael. Michael’s earning an acquittal for  Judge Howard “Mousie” Gross is legendary. But in typical  Michael fashion he shrugged it off as just another weeks  work in Court. 

  One time he and I convinced a Federal Judge in North Carolina to charge the jury with (what the Fourth Circuit eventually opined) was a non existing crime: Aiding and Abetting a Conspiracy. And there was the time when he and I (and Sky Smith) were trying a case in front of Joe Eaton (one of the greatest Judges ever). Sky’s client had a prosthesis for his left arm and hand. I had to sit next to Michael for three weeks, trying to contain my laughter at his constantly clever  barrage of comments about how the USMS was able/going  to handcuff Sky’s client. 

   I can go on and on. I loved Michael, but I am very angry at him. We had a deal. Michael was supposed to do my eulogy. It was one sentence he crafted in his typical witty fashion:  “No one was neutral about Joel Hirschhorn.” And I in turn agreed to do Michael’s one sentence eulogy: “Everyone who met, worked with,  or opposed, Michael loved him.” Truer words were never written. 

   We all have lost a great lawyer, a remarkable person. I have lost but will forever remember and cherish my best friend.

Joel

Want to be an AUSA?

By John R. Byrne

These jobs don't come around too often. The Miami US Attorney's office has announced vacancies in their criminal, civil, appellate, and asset forfeiture sections. The deadline for applying is April 18, so you'll need to get your application materials together quickly. The district is regularly one of the busiest in the country, trial-wise, and you'll hone your skills going against the best criminal defense bar around.

Congrats to the Gators on winning the school's third national title in basketball last night. Only seven universities have won more than three titles. A good trivia question for you to ponder today. 

DeSantis attacks federal judge (UPDATED with order)

UPDATE -- thanks to a helpful reader, here's the TRO.

Oy vey, here we go again.

This time our executive branch is going after Judge Kathy Williams.

From the Miami Herald:

Gov. Ron DeSantis on Monday called a federal judge an “activist” for blocking the enforcement of a new state law that makes it a crime for immigrants to come into Florida after they entered the country illegally. “Another day, another activist federal judge thinking the judiciary should be setting immigration policy rather than the elected officials,” the Republican governor said in a video posted on X on Monday.

"Activist" seems to mean any judge you disagree with... Instead of going after judges, litigate in court and if you lose, take an appeal  Sheesh.

Here's a Herald article discussing the order, which is just a 14-day TRO.  (Annoyingly, the Herald doesn't post orders that it discusses; if anyone has it, please post it in the comments or email it to me, and I will put it up.)

In the ruling, Williams said the law likely violates the U.S. Constitution because it seeks to enforce an issue that is exclusively reserved for the federal government. “In short, for nearly 150 years, the Supreme Court has held that the power to control immigration — the entry, admission, and removal of noncitizens — is exclusively a federal power,” Williams, of the Miami-based U.S. District Court for the Southern District of Florida, wrote.

***

To be charged with the new crime, an individual would need to be at least 18 years of age and law enforcement would need to prove that the person “knowingly” entered or attempted to enter Florida “after entering the United States by eluding or avoiding examination or inspection by immigration officers.” If convicted, a violator would face a mandatory sentence of nine months behind bars. In the ruling, the judge said the state law’s mandatory-detention provision “limits federal law enforcement discretion to recommend pre-trial release and obstructs federal courts’ ability to conduct proceedings requiring defendants’ presence.” “This ruling is a critical victory not only for immigrants and their families across Florida, but all of us who hold dear core principles of our Constitution,” said Bacardi Jackson, the executive director of the ACLU of Florida.

Conviction against attorney Marion Michael O’Steen reversed

From the intro paragraph of Judge Tjoflat's long opinion:

This appeal is the last chapter of a lengthy FBI investigation of the State Attorney for the Third Judicial Circuit of Florida,1 Jeffrey Alan Siegmeister. The investigation began in August 2018, after Andy Tong, whom Siegmeister was prosecuting for maintaining a gambling house in violation of Florida law,2 told the FBI that his attorney, Marion Michael O’Steen, would have to pay Siegmeister $50,000 for a favorable disposition of the case. The investigation concluded in February 2021, when a Middle District of Florida grand jury returned a twelve-count indictment against Siegmeister and O’Steen. Siegmeister was charged in eleven counts, O’Steen in four. Relevant here are Counts One through Four.

Law360 covers it here:

O'Steen, of Cross City, Florida, was convicted on the two charges in June 2022 and acquitted on two other charges of conspiracy to commit bribery and extortion. At trial, prosecutors said that O'Steen requested official acts from Siegmeister, including the favorable disposition of charges filed against his client, to enable O'Steen to get more fees from his clients.

"The offenses alleged in Counts Three and Four are materially unrelated, involve different factual predicates, and are subject to different standards of review. We consider them separately," U.S. Circuit Judge Gerald Bard Tjoflat wrote for the panel.

In August 2018, O'Steen allegedly told a client that if he paid an additional $60,000 fee, O'Steen could then use a "favor" with the state attorney to make "everything go away." O'Steen told his client he could go to trial, but he didn't think the client could win and that the client would not get the same result with another attorney, prosecutors said.

That $60,000 was provided as part of an FBI sting — a fact which is key in the appellate court's decision.

O'Steen was sentenced to concurrent prison terms of 44 months on those counts, to be followed by a three-year period of supervised release, and was ordered a fine of $45,000 and make restitution to the United States of $60,000.

On appeal, O'Steen's attorney argued that count three must be reversed because "a private citizen cannot be convicted as a principal to extortion under color of official right." O'Steen also argued that under the Hobbs Act, extorted property 'must be actual property of the victim' rather than 'sting money the government provided.'

"We agree. Although the use of government funds as bribe money depletes the funds available to the government, it does not 'deplete[] the assets of an individual who is directly engaged in interstate commerce.' …Therefore, evidence of an alleged extortion involving purely government money cannot establish even the minimal effect on interstate commerce that is required by the Hobbs Act," the appellate court found.

The Hobbs Act prohibits extortion and conspiracies to commit such acts that affect interstate commerce.

On count four, O'Steen argued he was entitled to acquittal because the government failed to provide beyond a reasonable doubt that he knew about a 15-day filing period for a Form 8300, which reports the receipt of more than $10,000 in currency, with the Financial Crimes Enforcement Network.

Read more at: https://www.law360.com/whitecollar/articles/2321445?nl_pk=fcc4077e-7182-4fa9-84a6-2b612a7aed76&read_main=1&nlsidx=0&nlaidx=1?copied=1

"I helped defend Reagan’s would-be assassin. Law firms that fear Trump, take note."

 That's the title of Greg Craig's op-ed in the WaPo.  Here's a piece:

 On March 30, 1981, I was a young partner at the law firm of Williams & Connolly working for the firm’s senior partner, Edward Bennett Williams, the leading trial lawyer of his generation and one of the greatest in American history.

That day sticks with me because it was the day that President Ronald Reagan was shot and nearly killed by a young man from Colorado named John W. Hinckley Jr. That night, while watching the evening news, I learned that Hinckley’s parents had contacted my law firm in search of representation for their son.

Early the next morning, I walked my normal route to work down Pennsylvania Avenue, past George Washington Hospital. The large, quiet crowd of TV cameras and members of the media stationed outside the hospital — surrounded in turn by police cars and barriers forming a perimeter around the entrance to the emergency room — reminded me that my firm might well be, at that very moment, considering whether to take on Hinckley as a client.

Because I had worked for two years as a federal public defender in Connecticut, Ed suspected that I would be eager for the firm to take the case. He might have been surprised when I told him we should decline if anyone in the firm had the kind of relationship with any of the shooting’s victims such that taking the case would cause them to leave the firm. I knew that some of the lawyers in the firm might well have worked closely with the president, been friends with his family or with James Brady, the White House press secretary who was grievously wounded and, on that day, close to death.

Ed invited me to participate in the executive committee meeting to explain that concern. Everyone agreed that we should check to see whether anyone in the firm had a close relationship with any of the victims, but on the underlying question of whether to take the case, there was at first no consensus.

The lawyers sitting around the conference table were articulate and opinionated — and they were not shy. The arguments against taking the case were straightforward: Given the overwhelming evidence of guilt, there was really nothing that we could do for Hinckley that a public defender could not do for him just as well. In addition, we knew next to nothing about his background. He might have turned out to be a Nazi sympathizer who would try to turn the case into a political show trial.

The economic arguments against taking the case were most compelling. We would eliminate any capacity to build business with the Reagan administration. It was hard to believe that clients who wanted to be on the good side of the administration would ever come to us. Besides that, we would surely lose existing clients who did not want to be associated with a law firm representing a would-be presidential assassin. Having Hinckley as a client could have been a financial disaster for the firm.

After hearing the views of everyone else, Ed finally spoke: “If our law firm isn’t strong enough to take this kind of case — as controversial and as blameworthy as this person is — it would certainly be hard for any other firm to do so.” He went on: “I have seven kids in my family. And I don’t doubt that one day one of them might do something stupid or crazy that would cause me to need a lawyer for him. I would not have much respect for our profession if I called up Arthur Liman at Paul Weiss and told him ‘Arthur, I need your help,’ and he came back and told me: ‘I’m so sorry, Ed. I have consulted my partners, and we think representing your son might do damage to our bottom line. But of course we wish him best of luck.’”

Williams & Connolly took Hinckley on as a client. I was on the team, led by Vince Fuller, that defended Hinckley at trial. The trial lasted three weeks, and the jury found him not guilty by reason of insanity.

 

 

 

Congrats!!

First, to Chief Judge Cecilia Altonaga and Judge Miguel de la O:

The Henry Latimer Center for Professionalism and the Standing Committee on Professionalism have named Chief Judge Cecilia M. Altonaga of the U.S. District Court for the Southern District of Florida and Judge Miguel de la O of the 11th Judicial Circuit as co-winners of the 2025 William M. Hoeveler Judicial Professionalism Award.

The annual award recognizes active judges who exemplify strength of character, service, and competence as a jurist, lawyer, and public servant.

Chief Judge Altonaga and Judge de la O “demonstrate the ideals of professionalism and justice while inspiring others to do the same,” according to the Center for Professionalism.

Second, to blog author John Byrne, who was appointed to the Third DCA JNC:

John Byrne of Coral Gables is a partner at Maderal Byrne & Furst. He earned his bachelor’s degree from the University of Florida and his juris doctor from Cornell University. Byrne is appointed from a list of nominees recommended by The Florida Bar for a term ending July 1, 2028.

 Can't believe the Governor's press release didn't mention the blog!

Jewish American Heritage Month Celebration is scheduled for May 8

 You are cordially invited to attend the United States District Court for the Southern District of Florida’s 2025 Jewish American Heritage Month Celebration on Thursday, May 8, 2025, from 4:00 to 5:30 p.m. in the Ceremonial Courtroom (13-3) at the Wilkie D. Ferguson, Jr. United States Courthouse, Miami.  This year's program is titled The Resilience of the Jewish People: A Conversation with Dan Senor and United States District Judge Roy K. Altman.  A reception will be held on the 14th floor following the program.

 We hope you can join us for this event!  Please RSVP by May 2, 2025 to:  FLSD_Program@flsd.uscourts.gov  

News & Notes

1. Justice Sotomayor speaks out. Via NY Times:

“Judicial independence is critical to everyone’s freedom, because arbitrary power is just that,” she said. “And it means that anyone is going to be subject to unfairness at someone else’s whim.”

Justice Sotomayor’s remarks came in a charged setting. Georgetown’s law school was the subject of an unusual inquiry from Ed Martin, the interim U.S. attorney for the District of Columbia. In a letter to Dean Treanor, Mr. Martin demanded that the law school end all efforts at achieving diversity, equity and inclusion.

2. Skadden cuts deal with Trump. Via the Hill:

President Trump on Friday announced a deal with the law firm Skadden, Arps, Slate, Meagher & Flom to provide at least $100 million in pro bono legal services “during the Trump administration and beyond.” 

The agreement comes as Trump has signed executive orders targeting Big Law firms tied to his critics and perceived political enemies, restricting the work they can do with the federal government. 

3. Jenner & Wilmer do not.  Via NY Times:

Jenner & Block said in a statement that its suit was intended to “stop an unconstitutional executive order that has already been declared unlawful by a federal court.” A third firm, Perkins Coie, has also sued the Trump administration over the same matter, and had some early success in stopping the executive order.

Jenner & Block also created a website — Jenner Stands Firm — to publicize its filing and to highlight newspaper editorials criticizing the executive orders and comments from law school professors questioning the legality of Mr. Trump’s actions.

On Friday evening, Judge John Bates of Federal District Court in Washington issued a temporary restraining order that bars the Trump administration from punishing Jenner & Block. The judge called the portion of the executive order that criticizes the pro bono legal work the firm does for organizations “disturbing” and “troubling.”

Later Friday, another federal judge in Washington, Richard Leon, issued a temporary restraining order granting WilmerHale most of the relief the firm sought from the executive order against it.

The effort to fight back in a public manner stands in contrast with the way other firms have handled Mr. Trump’s campaign against them.

4. Trump pardons Trevor Milton (Nikola) and commutes Carlos Watson's (Ozy Media) sentence.  Via the AP.

5.  Trump fires LA AUSA.  Via LA Times:

A federal prosecutor in Los Angeles was fired Friday at the behest of the White House, after lawyers for a fast-food executive he was prosecuting pushed officials in Washington to drop all charges against him, according to multiple sources familiar with the matter.

Adam Schleifer was terminated Friday morning, receiving an email informing him that the dismissal was “on behalf of President Donald J. Trump,” according to two of the sources, who requested anonymity for fear of reprisals from federal officials. Joseph T. McNally, the acting U.S. attorney for the Central District of California who is Schleifer’s boss, was not involved in the decision, the sources said.

Carley Palmer, a former federal prosecutor in Los Angeles who is now a partner at Halpern May Ybarra Gelberg LLP, said Schleifer was fired via a “one line e-mail, and it came from a White House staff account.”

  6.  Finally, your Sunday moment of Zen... one of the clips I always watch for inspiration in trial:

 

FBA Goes to Washington

 By John R. Byrne

Yesterday, members of our local chapter of the Federal Bar Association—myself included—hit Capitol Hill in D.C. to encourage support for the federal judiciary. The main goal was to convince legislators to support the "Judges Act," a bipartisan bill that would create sixty-nine new federal judgeships between now and 2035, including several in Florida.

But the Florida delegation had its own pet cause: getting the new federal courthouse in Broward named after Judge Dimitrouleas. Thanks to Oliver Ruiz, who pressed the issue with several legislators and their staff, great progress was made on that front.

On a separate note, a special shout-out to blogger (and criminal lawyer extraordinaire) David Markus, who added another acquittal to his résumé after a month-long trial in front of Judge Ruiz. His partner, Lauren Field Krasnoff, tried the case with him and was essential to the defense as well. No small feat!

(Pictured from left, Oliver Ruiz, Stephanie Turk, John Byrne, and Jon Osborne)

"Blindfolded Juries, Coerced Convictions: Why Prosecutors Often Win Before Trials Even Begin"

 That's the title of this new Clark Neily article, which is worth a read and starts this way:

The Bill of Rights dedicates more words to the resolution of criminal charges than any other subject, establishing a criminal justice system in which defendants are afforded rigorous protections such as the presumption of innocence, the right to counsel, and trial by jury.

But the Founders would hardly recognize today’s adjudicative process, which is more akin to an industrial-scale assembly line that prioritizes expediency over fairness and churns out guilty pleas through ad hoc, extraconstitutional dealmaking that systematically excludes ordinary citizens from a process in which they were meant to be the key players. And the small handful of defendants who resist the often palpably coercive pressure to plead guilty will be tried by a jury that has been carefully curated and indoctrinated to ensure it is free of people who understand the historic powers of jurors in our system, including but not limited to conscientious acquittal.

Bet the law-firm time

You all know the story.

Trump has issued executive orders against Perkins Coie and Paul Weiss. Perkins has decided to fight. Paul Weiss has decided to settle.

The managing partner of Paul Weiss, Brad Karp, issued this firm-wide email explaining his decision to bend the knee and settle. It's hard to blame him. Here's a snippet:

We initially prepared to challenge the executive order in court, and a team of Paul, Weiss attorneys prepared a lawsuit in the finest traditions of the firm. But it became clear that, even if we were successful in initially enjoining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being persona non grata with the Administration. We could prevent the executive order from taking effect, but we couldn’t erase it. Clients had told us that they were not going to be able to stay with us, even though they wanted to. It was very likely that our firm would not be able to survive a protracted dispute with the Administration.

At the same time, we learned that the Administration might be willing to reach a resolution with us. So, working with our outside counsel, we did exactly what we advise our clients to do in “bet the company” litigation every day: we talked with the Administration to see if we could achieve a lasting settlement that would not require us to compromise our core values and fundamental principles.

In a matter of days, we were able to negotiate such a resolution. That resolution, the terms of which I shared with all of you on Thursday evening, had three primary components. First, we reiterated our commitment to viewpoint diversity, including in recruiting and in the intake of new matters. Second, while retaining our longstanding commitment to diversity in all of its forms, we agreed that we would follow the law with respect to our employment practices. And third, we agreed to commit $10 million per year over the next four years in pro bono time in three areas in which we are already doing significant work: assisting our Nation’s veterans, countering anti-Semitism, and promoting the fairness of the justice system.

To be clear, and to clarify misinformation perpetuated from various media sources, the Administration is not dictating what matters we take on, approving our matters, or anything like that. We obviously would not, and could not ethically, have agreed to that. Instead, we have agreed to commit substantial pro bono resources, in addition to the $130+ million we already commit annually, in areas of shared interest. We will continue all of the existing pro bono work we already do and will continue in our longstanding role as a leader of the private bar in the pro bono and public interest sphere.

This existential crisis required the leadership of our law firm to make incredibly difficult decisions under extraordinary time pressure. In making those decisions, we were guided by two fundamental principles. First and foremost, we were guided by our obligation to protect our clients’ interests. As I mentioned earlier, we concluded that even a victory in litigation would not be sufficient to do so, because our firm would still be perceived as persona non grata with the Administration. We simply could not practice law in the Paul, Weiss way if we were still subject to the executive order. This resolution was unambiguously in our clients’ best interests.

You're the managing partner of Paul Weiss.  What would you do?

Chief Judge Pryor Issues Order on Misconduct Complaint

By John R. Byrne

There’s been a trend in multidistrict and class action litigation of federal district judges expressly seeking diversity in plaintiff-side leadership, which is court-appointed. Yesterday, Chief Judge Pryor issued an order explaining that such a practice violates the Constitution as well as certain judicial codes of conduct.

The order stemmed from a judicial misconduct complaint filed against Judge Casey Rodgers of the Northern District by influential conservative lawyer Michael R. Davis, who runs the Article III Project.

Judge Rodgers, an experienced MDL judge who is presiding over the Depo-Provera MDL, had made comments at a case management conference about striving for diversity in plaintiffs' leadership—particularly gender diversity. She said, “I think diversity is still an important thing to strive for, so diversity, you know, of all types, but particularly in this litigation, because of the Plaintiffs, I want that particular diversity reflected in the leadership. Now, that doesn't mean I'm looking for every single leader[] to be female, but females need to be adequately represented in your leadership.” Judge Rodgers later issued an order consistent with her comments. Davis filed a complaint, which led to Judge Pryor’s review.

Ultimately, the issue resolved itself, with Judge Rodgers making clear through later orders and comments that she wouldn’t be giving preference to female attorneys when appointing leadership. All the same, Judge Pryor wrote that “the Judicial-Conduct Rules, the Code of Conduct, and the Constitution prohibit federal judges from engaging in discrimination based on sex,” and went on to point out that commentators in the space were “openly encouraging [judges] who preside over these actions to consider impermissible characteristics like sex or race when they appoint leadership counsel.”

Full order below.11-25-90043 CJ Order by John Byrne on Scribd

CA9 Judge Lawrence VanDyke dissents in an 18-minute YouTube video

 Here's the video dissent, after a 147 pages of en banc opinions

"This is the first video like this I've ever made." -- Judge VanDyke at 4:45 mark of a video that goes on for over 18 minutes.

He then goes on to demonstrate with a gun.

Judge Marsha Berzon takes him to task in her concurrence, calling it "wildly improper" and saying that VanDyke “appointed himself as an expert witness” in an appeal. “Although I am surprised that it is necessary to do so, I write to reemphasize that as judges, we must decide cases as they are presented to us by the parties, leaving advocacy to the attorneys and testimony to the witnesses, expert and otherwise."

Chief Justice Roberts tries to lower the temperature

President Trump and a number of his surrogates have called for impeachment of Judge James Boasberg, one of our great judges.  Boasberg is smart and respected by both sides of the aisle.  

Chief Justice Roberts told Trump to stop.  

"For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose."

From SCOTUSblog:

Chief Justice John Roberts criticized a call by President Donald Trump for the impeachment of a federal trial judge who temporarily barred the federal government from deporting noncitizens pursuant to an executive order published on Saturday.

The rare public statement was the latest development in a fast-moving battle over Trump’s efforts to deport noncitizens alleged to be members of a Venezuelan gang pursuant to an eighteenth-century law that had been invoked only three previous times in the country’s history.

Trump’s executive order relied on the Alien Enemies Act, a 1798 law that allows the president to detain or deport citizens of an enemy nation without a hearing or other judicial review when Congress has declared war or when an “invasion” or “predatory incursion” occurs. Trump found that Tren de Aragua “is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States.” Based on that conclusion, he indicated that “all Venezuelan citizens 14 years of age or older who are members of TdA are liable to be apprehended, restrained, secured, and removed as Alien Enemies.”

On Saturday, James Boasberg – the chief judge of the U.S. District Court for the District of Columbia – prohibited the federal government from deporting any noncitizens for 14 days pursuant to the executive order published earlier in the day.

Boasberg also ordered the Trump administration to turn around any flights that had already taken off.

Despite Boasberg’s order, news outlets – including The New York Times – reported that the Trump administration had deported more than 200 noncitizens to El Salvador on Saturday night and Sunday morning. None of the planes carrying those noncitizens landed in El Salvador before Boasberg issued his written order.

 

 

Big Opinion on Firearms

 By John R. Byrne

The Eleventh Circuit just dropped another major opinion on constitutional law, this time upholding Florida’s ban on firearm purchases by individuals under 21 against a Second and Fourteenth Amendment challenge. With courts—including SCOTUS—grappling with gun rights post-Bruen, this decision adds another layer to the debate. And if you thought textualist and originalist judges would all fall on the same side of the issue, think again: Chief Judge Pryor, Judge Grant, and Judge Newsom backed the ruling, while Judges Lagoa, Luck, and Branch dissented. Read the full opinion below.

202112314.enb.op by John Byrne on Scribd

Your Friday Dose of Con Law

 By John R. Byrne

Missing your old Con Law class? Check out the Eleventh Circuit's recent decision in Littlejohn v. School Board of Leon County, Florida. The case involved a school board policy that allowed elementary school officials to develop a gender-identity-related "Student Support Plan" for a child without parental permission or involvement. The parents sued the school board, arguing that the board violated their fundamental parental due process and familial privacy rights.

The Court ultimately held that the trial court correctly dismissed the claims, reasoning that the parents were challenging "executive" action, that the "shocks the conscience" standard applies, and that the board's alleged actions didn't so shock. But the more interesting debate came in the lengthy concurrences, where Judges Rosenbaum and Newsom sparred over the continuing utility of the entire substantive due process doctrine—particularly, the differences in how it applies to legislative versus executive actions. Oh, and Judge Tjoflat thought that the Littlejohns' claim should have been allowed to proceed.

A lot to unpack here.Substantive Due Process by John Byrne on Scribd

Judge Rakoff on the trial penalty

 This is a must-read opinion about the trial penalty and why so few cases go to trial.  He explains why the acceptance provision in the Guidelines, 3E1.1(b), is an unconstitutional penalty imposed on a defendant for exercising his constitutional right to trial. 

Judge Rakoff promises defendants that if they proceed to trial, they will not receive a higher sentence than if they plead guilty.  That's how our system should work, of course.  But it's still pretty amazing that he does this in an effort to eliminate the trial penalty.

I got to know Judge Rakoff a bit when I interviewed him for the podcast a few years ago.  He's a unique and impressive guy.  

KBJ speaks at ABA conference in Miami

 Here's a post that covers some of it, including "her newfound friendship with Justice Amy Coney Barrett (who threw Justice Jackson a Hamilton-themed welcome party to the Supreme Court)."

On weighty legal issues of the day, Justice Jackson, who sat on the Sentencing Commission, shared that she has long-been a proponent of rebuilding the Sentencing Guidelines from scratch. She also addressed the timely topic of presidential immunity; referencing her recent dissent in Trump v. United States, she shared her concern that “immunity is a principle engendering inequality.”

When asked about the diversity of the judiciary and its impact, Justice Jackson cited an Oliver Wendell Holmes quote that “the life of the law has not been logic, it has been experience.” Justice Jackson believes that it instills confidence in the institution when judges come from different walks of life. Justice Jackson’s life exemplifies brilliance, possibilities, hope, strength, and service. It was no surprise that as the conversation ended, many in the packed conference hall shared that Justice Jackson’s comments had been a true inspiration and flocked to buy her memoir, “The Lovely One,” titled for the translation of her name, Ketanji Onyika.

 

 

Get ready for immigration cases

 New Deputy AG Todd Blanche has issued this memo to all U.S. Attorneys:

 

ABA white collar conference

 It's here for the next 3 days, folks. Lots of big firm "litigators" descending on Miami to discuss the latest white collar trends. Usually there are a bunch of DOJ officials that attend. Not this year. From Bloomberg:

Several senior Justice Department officials are last-minute scratches at a white-collar crime conference that leaders have regularly used to engage with the defense bar and reveal new policy initiatives.

The gathering, organized each year by the American Bar Association, begins March 5 in Miami and features a various panel discussions on trends in US enforcement. But most of the senior DOJ lawyers planning to appear are no longer on the schedule.

They include Glenn Leon, chief of the criminal division’s fraud section; Molly Moeser, head of a money laundering and asset forfeiture unit; David Fuhr, chief of the criminal division’s Foreign Corrupt Practices Act unit; and Michael Granston, a deputy assistant attorney general in the civil division’s commercial litigation branch.

$3,000 an hour

 That's what Alex Spiro is charging at Quinn Emanuel.  Per Reuters:

Quinn Emanuel's $3,000 top rate marks a milestone for leading U.S. law firms as lawyers' hourly fees continue to soar.
Law firms routinely raise their rates each year, and top rates at some of the largest U.S. firms have pushed past $2,500 an hour or higher in recent years, court records show.
Quinn Emanuel said in its court filings that its partners now bill between $1,860 and $3,000 an hour. It said it will charge between $1,775 and $2,725 an hour for “of counsel” attorneys at the firm, and between $1,035 and $1,665 for associates.
Billing rate increases helped drive growing revenue and profits for U.S. law firms in 2024, Wells Fargo's Legal Specialty Group said in a recent report.
Clients have been willing to accept “dramatic increases” in rates, according to a report last month by the Thomson Reuters Institute and the Georgetown Law Center on Ethics and the Legal Profession. The institute and Reuters share the same parent company, Thomson Reuters.

While you think of that, you may need a moment of zen.  So I give you Billy Joel:

Friday before trial

What do you do on the weekend before trial?  Are you cramming?  Do you try to relax a bit?  Do you spend time with the client?

An old colleague of mine at the PD's, Vince Farina, used to say -- if you don't know it by now, you don't know it.  He would go get a massage and a haircut.

Congratulations to Judge Lett!

By John R. Byrne

Congratulations to Judge Enjoliqué Lett on her investiture last Friday.  Attendees say it was a heartfelt event, with several speakers remembering Judge Marcia G. Cooke, for whom Judge Lett clerked.  

 

In addition to family and colleagues, Judge Seitz, Judge Williams, and Stephanie Casey spoke, with Judge Gayles administering the oath of office.

Trial inspiration?

 I'm about to start a trial where I really believe in my client.  I like to watch trial movies and scenes to get fired up before the trial gets going.  Of course there are the classics like A Few Good Men, My Cousin Vinny, 12 Angry Men, A Time to Kill, and others.  

What are your favorite trial movies and scenes?

 

 And for those of you who don't know, Star Trek has some really great trial scenes: 

 

Kash Patel, former Miami APD and AFPD, confirmed as FBI director

1. From NPR:

The Republican-led Senate voted Thursday to confirm Kash Patel as the new FBI director despite questions about whether he has the qualifications and the temperament to lead the nation's most powerful law enforcement agency.

Patel, a close ally of President Trump and a fierce critic of the FBI, was confirmed by a 51-49 vote, with Republican Sens. Susan Collins and Lisa Murkowski joining all Democrats in opposing him.


It caps a remarkable rise for Patel, who has worked as a public defender, federal prosecutor and congressional aide before serving as a national security official in President Trump's first term. He later emerged as a fixture in MAGA world, a right-wing podcast regular and a Trump loyalist.

Republicans welcomed his confirmation. They argue that the FBI has unfairly targeted conservatives in recent years, and they see Patel as someone who will fix that purported problem.

"Kash is the right man to clean up the FBI to restore Americans' confidence and trust that the FBI is not a political organization, it is a law enforcement organization," Sen. Lindsey Graham, R-S.C., said in a post on X.

2.  In other news, Jay Weaver covers Trump's new pick for U.S. Attorney in the SDFLA, Jason Reding Quinones.  The intro:

On paper, President Donald Trump’s new nominee to head the U.S. Attorney’s Office in South Florida seems to have solid credentials.

He formerly served as a federal prosecutor in the Miami office, was appointed as a Miami-Dade County judge a year ago by Gov. Ron DeSantis, and he’s a lieutenant colonel in the Air Force Reserve.

But there are a couple of things in the background of Jason A. Reding Quiñones that were not highlighted in Trump’s glowing post about him on his media platform, Truth Social, on Sunday, including a name change and that he received poor evaluations as a criminal prosecutor in the same office he has been nominated to head.

You don't see this all that often...

 ...the feds dropped a drug case against a doctor who was previously accused of sex trafficking because of a bad warrant.  Jayne Weintraub was Dr. Jeffrey Kamlet's lawyer.  From the Herald:

Serious mistakes by the Miami-Dade State Attorney’s office led to the dismissal Tuesday of federal narcotics charges against Dr. Jeffrey Kamlet, a Miami addiction doctor accused of sex trafficking a 17-year-old girl found hiding in his closet with another teenager in 2022. In a court filing last week, Kamlet’s attorney, Jayne Weintraub, seized on several errors made in drafting the search warrants, among them, an obvious “cut and paste” job by the investigator for Miami-Dade State Attorney Katherine Fernandez Rundle’s Human Trafficking Task Force. The dismissal of the federal drug charges is another stunning embarrassment for Rundle, whose office has come under scrutiny after years of sloppy prosecutions that have led to similar dismissals, as well as resignations of top lawyers in her office.

Judge Jason Reding Quiñones nominated to be U.S. Attorney in the SDFLA

It is my honor to nominate Judge Jason Reding Quiñones as the next United States Attorney for the Southern District of Florida.

A former Federal prosecutor and Justice Department National Security Official, Judge Reding Quiñones currently serves as a highly respected State Trial…

— Donald J. Trump Posts From His Truth Social (@TrumpDailyPosts) February 16, 2025

He's an FIU grad, class of 2008. Before that he went to U.F. He's been in the Air Force and in JAG. An AUSA. And a judge. Congrats to Mr. Reding Quinones. For those that know him, please let us know your thoughts in the comments.

Thursday afternoon massacre?

It's the buzz of the criminal defense and DOJ world.

Quick background -- Mayor Eric Adams is indicted in SDNY while Biden is president.

Trump's DOJ orders SDNY to dismiss case.

SDNY, DOJ, and Adams' lawyers meet.

SDNY refuses to dismiss.

Acting U.S. Attorney resigns and writes an 8 page letter.

Emil Bove for DOJ responds in his own 8 page letter.

You can read both letters (worth it!) at this link.

Case gets reassigned to the public integrity unit so they can dismiss the case.

The top prosecutors at public integrity resign.

Lots of local line prosecutors have been emailing and texting about this today.  Post your thoughts in the comments, and feel free to do so anonymously.

Justice Sotomayor speaks in Miami

 Jay Weaver covers it here:

 Sonia Sotomayor may be a household name, but her storied legal career stems largely from feeling comfortable in her own skin. “You have to be true to yourself,” Sotomayor, the nation’s first Hispanic justice on the U.S. Supreme Court, told more than 200 people Tuesday evening during a chat with Knight Foundation President and CEO Maribel Pérez Wadsworth at the Miami Dade College campus in Little Havana.

“I have never denied my culture or hidden my love for my Spanish roots,” Sotomayor said, highlighting her love for family, salsa and roasted pork. “All of these things are important to me and I take pride in them.”

Judge Tjoflat says it's the Gulf of Mexico

In a footnote from this case:

On January 20, 2025, President Trump issued an executive order directing that “[t]he area formerly known as the Gulf of Mexico” be renamed as the “Gulf of America.” Exec. Order No. 14172, 90 Fed. Reg. 8629 (Jan. 20, 2025). Because the statutory schemes pertinent to this appeal explicitly refer to this geographic area as the “Gulf of Mexico,” we continue to use that name.

"US Attorneys Said to Be Told to Justify Keeping Newest Prosecutors"

 That's the headline from this explosive article from Bloomberg's Ben Penn.  I'm told there are at least 20 local probationary prosecutors who may be fired.  From the article:

Justice Department headquarters has given all 93 US attorneys two business days to explain why prosecutors they’ve hired in the past two years who aren’t focused on Trump priorities such as immigration and public safety should be retained, said five people briefed on the situation.

Although the nation’s chief prosecutors haven’t been told exactly how the department will use this information, some are treating it as a weekend assignment to save the jobs of numerous line attorneys and support staff on probationary status who aren’t pursuing cases aligned with the president’s agenda.

US attorneys must provide by Feb. 10 justifications for keeping anyone with less than two years of service who doesn’t work on immigration enforcement, national security, or public safety, said the individuals, who spoke on condition of anonymity to describe private conversations. The request came from a senior career official who is herself being kept in the dark about the purpose of the mandate.

Recent hires who don’t fall into those three specified categories would potentially include prosecutors specializing in white collar, civil fraud, and civil rights investigations.

The directive is the latest signal about how the Trump DOJ intends to shrink the size of its workforce. Prior guidance from the federal government’s HR office required agencies to assemble lists of new hires for possible termination and Attorney General Pam Bondi’s day one memos warned employees could face termination over their politicization or disobedience.

In a memo Thursday from the Executive Office for US Attorneys and in a followup call Friday, US attorneys were instructed to identify the probationary status of anyone hired in the past two years and then provide details about their work if they deserve to stay.

Determining when each assistant US attorney surpasses their probationary term—making them tougher to fire—is a complicated exercise. It generally lasts two years into the job, but that can be shorter or longer depending on prior government service, security clearances, and other factors.

Adding to the frustration for the US attorneys is that the senior official tasked with delivering the orders—an EOUSA director appointed by then-Attorney General Merrick Garland in October—didn’t know answers to their questions about what would come of the identified employees.

The directive to the field comes a week after Bloomberg Law reported that senior DOJ political appointee Emil Bove asked US attorneys to recruit line prosecutors for assignments to border districts.

On Feb. 5, Bondi, hours after being sworn into office, issued memos to diminish white collar enforcement by redirecting foreign corruption, money laundering, and overseas lobbying transparency prosecutors to focus more narrowly on cartels and transnational crime.

The US attorneys, a mix of holdover Biden appointees, acting career officials, and interim leaders installed by Trump, will now have the next few days to make their case to Justice Department headquarters about retaining prosecutors involved in corporate crime and other fields that weren’t singled out as priorities.

News & Notes

1. Last night was the Federal Bar prom. It was very well attended with federal judges and lawyers, all mingling on an outdoor deck on a beautiful Miami night.

2. Former U.S. Attorneys Bob Martinez and Marcos Jimenez come to the defense of FBI agents in this op-ed in the Miami Herald. From the piece:

Today’s FBI agents, like their fallen colleagues, live and work among us, mostly maintaining a low profile. They send their children to our local schools, raise their families in our communities, and maintain a modest and law-abiding lifestyle. They live like average Americans. Yet, on a daily basis, their jobs are not average. They are the ones that Americans have assigned the responsibility to shield us from terrorism and espionage, from predators targeting children, to ferret out public corruption, to protect us from fraud, from kidnappers, from violent predators. To guard our civil rights. They are located in cities and towns across our country and throughout the world. Their work is essential to a safe and free society. Many Americans are trying to make sense of the current effort to purge potentially thousands of hard-working, dedicated agents from the FBI. What would be the impact of the removal of so many federal law enforcement officers on the safety and security of our nation? Who will want to join the FBI if their employment can be terminated, and their identities exposed to retribution by the very criminals they investigated, whenever a new politician takes over?

3. Congress has tasked the Sentencing Commission with describing extraordinary and compelling reasons that may warrant a sentence reduction. The Commission issued a Policy Statement in 2023 that allows defendants to move for a sentence reduction if they can show that their original sentence is “unusually long.” In issuing that Policy Statement (section 1B1.13(b)(6)) the Commission wanted to clarify that defendants may present—and district courts may consider—nonretroactive changes in law as the basis for concluding that a sentence is “unusually long.”

Judge Ruiz has concluded, in this 40 page order, that district courts cannot apply section 1B1.13(b)(6) of the United States Sentencing Commission’s Policy Statement as a matter of law, because the Commission exceeded their statutory authority in allowing district courts to consider nonretroactive changes in law. The Eleventh Circuit will be weighing in on this issue soon, I'm sure, as district judges on our Court are coming out on different sides of the issue.

Judge McAliley defends Michael Thakur and other DOJ lawyers

 One of best all-time magistrate judges wrote an op-ed in the Miami Herald, DOJ firing of Miami federal prosecutor is a ‘gut punch’ to the rule of law.  Some snippets:

Until my recent retirement, I worked for nearly 19 years as a U.S. magistrate judge on our Miami federal trial court in the Southern District of Florida, where I had the honor to preside over a wide variety of criminal and civil lawsuits. Last week I read with despair – for our country – that acting U.S. Attorney General James McHenry fired one of Miami’s finest federal prosecutors, Michael Thakur. Did Thakur not do his job? No. Quite the opposite. Thakur, a Harvard College and Harvard Law School graduate and a 15-year veteran of the U.S. Attorney’s Office, was one of the best to appear before me and my colleagues on the bench. Intelligent, ethical, hardworking, with excellent judgment.

Assistant U.S. attorneys, who are career prosecutors, may only be fired for cause — not for a political reason. They are career civil servants who must fairly apply the law, “without fear or favor.” They serve under both Democratic and Republican administrations, as Thakur did. They do not “implement a president’s agenda,” but rather follow where the facts and the law lead them. During my years on the bench, I watched Thakur represent the U.S. in the courtroom and behind the scenes. Magistrate judges review countless sealed applications submitted by prosecutors investigating crimes, asking for government access to possible evidence. Thakur’s search warrant and similar applications were top notch, carefully prepared and supported by evidence and law. He displayed the same sound judgment in the courtroom as he prosecuted terrorists, foreign spies, narcotics traffickers, fraudsters and violent criminals.

***

Our justice system is designed to protect against mistaken, incompetent or even corrupt prosecutors. The DOJ imposes high internal standards on its lawyers, which is another backstop against error. The standards are higher yet for investigations of political figures as the department imposes layers of review of those cases. The dismissal of brilliant, hardworking, conscientious career public servants like Michael Thakur is a gut punch. Thakur is ushered out the door, and the morale of his colleagues tanks. If such unjustifiable dismissals in the DOJ continue, we will no longer have the best among us, proud to serve and protect us. It will take generations for this country, and our institutions, to recover.

The new administration hasn't figured out how to cancel this, yet.

Looks like a very interesting presentation.