Stranger in a strange land

Judge Ruiz just issued his formal order in United States v. Agresti, after last month certifying his intention to grant a new trial in the case of a doctor who was convicted of Medicare charges arising from his drug testing of sober home residents to prevent and detect relapse.  The Order offers a scathing rebuke of the government's star witness, sober home owner Kenneth Bailynson, who lied on the stand.  Judge Ruiz found that "[g]iven the crucial role Bailynson's testimony played during Agresti's trial, a new trial is warranted."  

Richard Klugh, with Jenny Wilson and Greg Rosenfeld, handled the case.  

The Order is a really entertaining read.  It starts off:

"The famed science-fiction writer Robert A. Heinlein once wrote that the 'slickest way in the world to lie is to tell the right amount of truth at the right time--and then shut up.'  The star witness in this case, Kenneth Bailynson, might have been wise to follow Heinlein's advice---instead, he forgot to shut up."  

The order details how Bailynson "weaved lies with truths" in "crafting a narrative that pitted his word against Agresti's," and went further to "ensure[ ] that the only person who could pull a thread out of the intricately woven tapestry was dead."  Even the government at one point admitted that without Bailynson, there was no chance of a conviction. 

As Judge Ruiz writes, "Agresti was put on the defensive--having to rebut a story for which there was no proof beyond Bailynson's testimony."  Bailynson's perjury led to Agresti's conviction. After the conviction, Bailynson admitted he lied--but then he shifted gears again and said he lied about lying.  At one point he admitted that he preferred to be seen "in the public eye as a liar and a perjurer" rather than a "rat, snitch and government informant."  

In granting the new trial motion, Judge Ruiz rejected the government's arguments that Bailynson's post-trial statements were "merely impeaching because the Defendant would have been convicted even had the jury heard them at trial and discounted Bailynson's testimony," and that the lies did not amount to perjury because Bailynson "retract[ed] his recantation" of his testimony.  "[T]he Government's attempt to create separation between a motion for new trial when based on a retracted recantation as compared to perjury is misleading--at best," Judge Ruiz wrote, finding that the lies were perjury and that the evidence of perjury was material and more than merely impeaching or cumulative.   As Judge Ruiz pointed out: "it is one thing to call someone a liar and quite another to know someone is a liar."  

Kudos to Judge Ruiz for doing the right thing and doing so in such a thorough and fun order.

Interim? (UPDATED)

Apparently there is some controversy over at the U.S. Attorney's Office.  Hayden O'Byrne has been appointed as "interim" U.S. Attorney.  That title should stick for 120 days pending approval by the district court.  And it's possible that eventually he will be the U.S. Attorney, but there is some jockeying for that position by a number of folks.

But according to multiple sources, he has instructed the office to remove the word "interim" from pleadings.   In fact, you can see his signature block on this notice dropping the prosecution against Trump co-defendants in the documents case: 

 

JUST IN: The Justice Department is moving to drop special counsel Jack Smith's case against Trump allies Walt Nauta and Carlos DeOliveira, the last vestiges of Smith's Trump cases. pic.twitter.com/4IKJoJ6KuU

— Kyle Cheney (@kyledcheney) January 29, 2025

Jay Weaver has more details about that dismissal here.

UPDATED -- in response to this post, a number of sources tell me that O'Byrne is in fact the U.S. Attorney and that he is not "acting" or "interim."  

DOJ fires prosecutors who investigated Trump, including local AUSA Mike Thakur (UPDATED -- & AUSA Anne McNamara too)

The media has covered DOJ's firing of prosecutors and officials involved in the Trump investigations.  For example, here's a CNN article:

More than a dozen officials who worked on the criminal investigations into Donald Trump have been fired, according to sources familiar with the matter.

A letter from acting Attorney General James McHenry to the officials said they cannot be “trusted” to “faithfully” implement Trump’s agenda.

“You played a significant role in prosecuting President Trump. The proper functioning of government critically depends on the trust superior officials place in their subordinates,” McHenry wrote. “Given your significant role in prosecuting the President, I do not believe that the leadership of the Department can trust you to assist in implementing the President’s agenda faithfully.”

The firings come as the the Trump administration is taking concrete steps to investigate prosecutors who oversaw the criminal cases against January 6 defendants after Trump vowed to seek retribution as a key pledge of his campaign, according to multiple sources who have seen an internal memo on the matter.

Ed Martin, the interim US attorney in Washington, DC, has launched an investigation into prosecutors who brought obstruction charges under US Code 1512(c) against some rioters that were ultimately tossed because of a Supreme Court decision last summer.

Here in SDFLA, home of the documents case, DOJ fired AUSA Michael Thakur who worked on the case. According to multiple sources, Thakur was escorted out of the office without notice by two court security officers.  He was not permitted to clean his office out.  According to one tipster, he was "frog-walked" out of the office.  Apparently this was done before Hayden O'Byrne was named Interim USA.  

UPDATED -- AUSA Anne McNamara was also fired.  

SECOND UPDATE -- Jay Weaver covers the story here.

Breaking-- Trump names acting US Attorney

 Hayden O'Byrne is Acting USA.

He's been an AUSA for a while and is a long time member of the Federalist Society. 

Congrats to Mr. O'Byrne. You have a lot of work to do!

STOP THE PRESSES -- Justice Alito rules for criminal defendant in habeas case

 I've been pretty outspoken that Justice Alito is the least friendly Justice to criminal defendants. (We miss Justice Scalia!)  But last week, Alito ruled for the defense in a habeas case.  The 7-2 majority starts of like this:

An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death. The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause. The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By the time of Andrew’s trial, this Court had made clear that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.

Justice Alito concurred:

I concur in the judgment because our case law establishes that a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair. See Payne v. Tennessee, 501 U. S. 808, 825 (1991); Romano v. Oklahoma, 512 U. S. 1, 12 (1994); cf. Rideau v. Louisiana, 373 U. S. 723, 726 (1963). I express no view on whether that very high standard is met here.

 It was a 10th Circuit case, so Gorsuch joined Justice Thomas' dissent.

So you want to be a magistrate judge?

 Applications can be found here and are due February 23.

Here is the committee that will be making recommendations to the district court:

The members of the Federal Magistrate Judge Merit Selection Panel are as follows:  

Chair:  Ryan Ulloa, Esq.    

Members:  Jodi Avila, Esq. Sowmya Bharathi, Esq. Fabiana Cohen, Esq. Melanie Damian, Esq. Samuel Danon, Esq. Matthew Dates, Esq. Hector Dopico, FPD Wifredo Ferrer, Esq. Lindsey Lazopoulos Friedman, AUSA Sofia Gomez (non-attorney)  Francesca Nabors (non-attorney) Jonathan Osborne, Esq. Mark Pinkert, Esq. Evelyn Sheehan, Esq. 

Judge Cannon grants Trump's co-defendants' motion to preclude release of Documents Case Report

 From the introduction of the Order:

THIS CAUSE comes before the Court upon the Emergency Motion to Preclude Release of Volume II of Special Counsel’s Report (“Emergency Motion”), filed by Defendants Nauta and De Oliveira [ECF No. 679], as well as President-Elect Trump’s Motion to Intervene or Alternative Request to Participate as Amicus [ECF No. 681].1  As narrowed by the Court’s prior Order on Volume I, which has since been publicly released [ECF Nos. 697, 702], the Emergency Motion seeks to preclude the Department of Justice (“Department”)—prior to the conclusion of proceedings in this criminal action—from releasing a redacted version of Volume II of Special Counsel Smith’s Report for in camera review by the Chairmen and Ranking Members of the House and Senate Judiciary Committees [ECF No. 712].  Volume II contains voluminous and detailed Rule 16 discovery about the allegations in this criminal case, which remains pending on appeal as to Defendants Nauta and De Oliveira [ECF Nos. 672, 673].  See 11th Cir. Appeal No. 24-12311.2    Following a hearing and review of all relevant filings, including an in camera review of Volume II itself, Defendants’ Emergency Motion is GRANTED as to Volume II [ECF No. 679], and President-Elect Trump’s Motion to Intervene is DENIED WITHOUT PREJUDICE as to Volume II but granted as to the alternative, unopposed request to participate as amicus to challenge release of Volume II [ECF No. 681; ECF No. 710 p. 9; ECF No. 702 (denying motion to intervene as to Volume I)].   

Judge King turned 97 last month

 97!

Here's an email that Judge Moreno sent to him last year, which he graciously shared with the blog:

Larry, tomorrow is your 96th birthday . That, in and of itself, is an accomplishment. Your contributions to the law are incredible, not only as the longest serving district judge (appointed by President Nixon in 1970 after your service as a Florida Circuit judge when there were only a few in Dade County) but also as a lawyer when your fought segregation in Southern “Miamuh.” You had one trial after another in the 70’s and 80’s, a record that rivals if not surpasses Judges Marcus, and Scott then and Altonaga, Middlebrooks and Martinez. I remember trying the murder of an agent along with other cases before you and a score of other jury trials. Even when you took senior status soon after my arrival in 1990 you kept a 100 per cent caseload, like Chief Judge Altonaga now does. So when you were replaced by Judge  Lenard, our district got two judges, your replacement and you. We called ourselves the lonely 11 due to the delay in confirmations. You were my first Chief followed by Chief Judges Roettger, Davis, Zloch, Moore and Altonaga. And at the end of your seven year term you kept on working, and finally began traveling with your wonderful wife before her untimely passing. You planned and worked hard to get King and Atkins buildings (subsequently Moore and Altonaga got the Ferguson and the Ft: Lauderdale courthouses). Your son, as a Florida judge, and daughter and son in law as AUSAs, followed in your footsteps serving the community.  Now that you are recovering from your fall, I know you will have time for your children and grandchildren. You certainly deserve a break. You have a building named after you (at Notre Dame only canonized saints or those who fund the $40 million dollar cost get that.) Plus you received the prestigious Devitt Award given by Justice Ruth Ginsburg. So now you can relax, enjoy your golden years and let the active judges handle our present load. I know you converted to Catholicism so you know of many other ways to serve. You are a big Gator so I will work on you becoming a Fighting Irish fan. Thank you and happy birthday. Fred

What's going on over at the USAO

The Brady issues over there have been going on for many many years.  And it hasn't stopped.  

Another example: Judge Altonaga was presiding over a CJA trial involving allegations of smuggling arms to Haiti.  

There was a big fight over Brady material.  Then, after a witness testified, the prosecutors turned over Brady material that contradicted the testimony from the day before.  

Mistrial ordered.

And the following order issued:

 

Thank goodness for Chief Judge Altonaga, who is willing to not only call out prosecutors when they mess up, but do something about it as well. 

 We all know a bunch of judges who would have yelled at the prosecutors but then denied the motion to mistrial and nothing happens. This is what it's supposed to look like. Hopefully it will help deter this conduct in the future. 

WHY NOT JUST HAND EVERYTHING OVER IN ADVANCE?

Judge Cannon allows Volume 1 of Special Counsel report to be released

There's been a crazy flurry of filings before Judge Cannon over the past week. The bottom line is that Volume 1 of Jack Smith's report (the election interference report) has been released over objection.  Here's the 137 page report.  Volume 2 is still under seal and there will be arguments before Judge Cannon on that report on Friday at 2pm. 

From CNN:

Volume one of Smith’s report marks the special counsel’s final official word on his investigation into January 6, 2021, and the actions by Trump and his associates before then to interfere with the peaceful transfer of power.

It contains a factual recitation of Trump’s attempts to overturn the 2020 election, including his “pressure on state officials,” the “fraudulent electors plan,” his “pressure on the Vice President” Mike Pence, and a section on how Trump’s supporters attacked the US Capitol on January 6. In effect, it mirrors the landmark federal election subversion indictment that Smith brought against Trump in 2023, retooled in 2024 after the Supreme Court’s immunity ruling, and ultimately withdrew after Trump’s victory in the November election.

“Until Mr. Trump obstructed it, this democratic process had operated in a peaceful and orderly manner for more than 130 years,” Smith wrote, referring to Congress’ certification of the Electoral College results, under the Electoral Count Act of 1887.

When it came to his duty as special counsel and the work of investigating and prosecuting Trump, Smith wrote that his “office had one north star, to follow the facts and law wherever they led. Nothing more and nothing less.”

Of the failed prosecution of Trump, Smith said that prosecutors “cannot control outcomes” and can only do their jobs “the right way for the right reasons.”

The final decision to prosecute the former president, he said, was his alone. “It is a decision I stand behind fully,” Smith wrote. “To have done otherwise on the facts developed during our work would have been to shirk my duties as a prosecutor and a public servant.”

Smith concluded that while the Justice Department interprets the Constitution as not allowing the prosecution of a sitting president, his office “assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”

Trump, for his part, slammed the special counsel’s report as “fake findings” in overnight posts on his Truth Social network. “Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide,” the president-elect wrote in part. “THE VOTERS HAVE SPOKEN!!!”

 In other news, the two lawyers who couldn't agree on anything had their lunch:

 

Investiture of David Leibowitz

Congratulations to Judge David Leibowitz on his investiture.  It was a truly lovely event with great speakers, including Ben Greenberg, Ron Dermer, and Judge Michael Farbiarz.  Sen. Marco Rubio (pictured below with Stephanie Casey and Lindsey Lazopoulos Friedman) and his wife Jeanette were also in attendance.  Lots of great stories, including about Judge Leibowitz as the Philadelphia Eagles' mascot!

 

James Earl Carter by Michael Caruso

 Guest Post by Michael Caruso

As you know, today has been designated as a National Day of Mourning for President Carter.

To recognize his passing, I thought I would note the giants he appointed to our district court. Because many of David’s readers  likely did not practice before these judges, I hope those who had will comment about their experiences. Also, I hope current judges who served alongside these judges (or clerked for them) also will share.

In order of appointment:

William Hoeveler

Jose A. Gonzalez, Jr.

Edward B. Davis

James W. Kehoe

James C. Paine

Eugene P.  Spellman and

Alcee Hastings

Among many other accomplishments, we owe President Carter a debt of gratitude for making these appointments.

Trump argues that Jack Smith should not be permitted to release his report

Judge Cannon has temporarily enjoined Jack Smith from doing so.  Her order is here. 

And the 11th Circuit has ordered Smith to respond by 10am tomorrow (!!) on this issue.

Here's Politico on the news:

Cannon’s order, issued at the request of two Trump allies who were co-defendants in the classified documents case, bars the Justice Department from releasing the report or any portion of it until three days after a federal appeals court rules on the issue.

The order bars Garland, the Justice Department, Smith and “all of their officers, agents, and employees, and all persons acting in active concert or participation with such individuals” from “releasing, sharing, or transmitting the Final Report or any drafts of such Report outside the Department of Justice.”

Cannon’s order does not apply to Trump or his co-defendants, even though Smith contends they inappropriately revealed aspects of the report — which they have reviewed in recent days — in a Monday court filing. In that filing, Trump revealed Smith described him as “engaged in an unprecedented criminal effort,” as “the head of the criminal conspiracies” and said he harbored a “criminal design.”

U.S. Attorney Mark Lapointe resigns

 Here is his statement:

For the past two years, I have served as the United States Attorney for the Southern District of Florida. After much reflection, I write to announce my resignation from this position, effective January 17, 2025, at 11:59 p.m.

 

It has been an honor and privilege to serve as United States Attorney. I have strived to meet the responsibilities of this position with vigor, determination, commitment, thoughtfulness, and humility.

 

Those familiar with my personal history may recall that I am a native of Haiti, a country whose government struggles to perform basic functions, and where the rule of law has yet to build reliable traction. When I immigrated to this country in my teens, I lived in Miami’s Liberty City neighborhood, then an urban area with high crime and associated problems. Given where I started, it has been uniquely meaningful to hold a role so central to the Department of Justice’s mission of supporting our collective well-being through the exercise of the rule of law. 

 

Also meaningful has been working alongside the talented lawyers and professional staff of the United States Attorney’s Office, as well as with the agents and employees of our partner federal, state, local, and tribal law enforcement agencies. These honorable public servants meet the challenges of safeguarding our homeland, local communities, and government institutions selflessly and without fanfare, at times at significant personal costs. I have never stopped being inspired by them and always will cherish my time as part of this deeply noble undertaking. To them, I extend my utmost gratitude and admiration.

 

I would not have had this life-changing experience without the support of President Joseph R. Biden, Congresswoman Frederica Wilson, Senator Marco Rubio, Senator Rick Scott, and countless leaders from our community. To all of them, thank you for trusting me to fulfill the duties of United States Attorney for the Southern District of Florida.

 

With gratitude,

 

 

Markenzy Lapointe

A new year

Welcome 2025.

Everyone is now back at work and ready to go!

Here's some news to get you going:

1.    The great Maedon Clark has retired after 48 years.  48!!  Truly incredible.  Everyone wishes Maedon the best and she was the absolute best.

2.    Joan Silverstein, who has run the U.S. Attorney's Office for as long as I can remember, has left the office and has entered private practice at Gelber Schachter & Greenberg.

3.    The Special Counsel's Office has withdrawn from the Trump documents appeal in the 11th Circuit.  It already dismissed against Trump after the election, but the case is still pending against the co-defendants.  Who will prosecute the case and handle the appeal now that Jack Smith is out.  Well, Markenzy Lapointe has entered an appearance himself in the 11th Circuit.  And he won't be around much longer with the change in administration.  So it's unclear what will happen with that government appeal.

4.    Chief Justice Roberts issued his year end report.  It was all about judicial independence and threats to the judiciary.  It ends this way:

The federal courts must do their part to preserve the public’s confidence in our institutions. We judges must stay in our assigned areas of responsibility and do our level best to handle those responsibilities fairly. We do so by confining ourselves to live “cases or controversies” and maintaining a healthy respect for the work of elected officials on behalf of the people they represent. I am confident that the judges in Article III and the corresponding officials in the other branches will faithfully discharge their duties with an eye toward achieving the “successful cooperation” essential to our Nation’s continued success. Photo credits:  Page 1, Sallie Dixon, used by permission. As always, I am privileged and honored to thank all the judges, court staff, and other judicial branch personnel throughout the Nation for their commitment to upholding judicial independence and the rule of law through their outstanding public service. Best wishes to all in the New Year. 

5.  Finally, congratulations to Judge Embry Kidd, who was sworn in to the Eleventh Circuit.  Pictured below with Judge Charles Wilson, swearing him in: