Shark Divers Pardoned

 By John R. Byrne

Happy Friday. A few months back, the blog covered the case about two shark divers who were prosecuted and convicted because they tried to save sharks from what they believed was an illegal poaching operation. The Eleventh Circuit reluctantly affirmed the convictions, with Judge Lagoa writing a powerful opinion lambasting the government for prosecuting the men in the first place. 

This past Wednesday, President Trump pardoned the men. Congrats to Marc Seitles, Ashley Litwin, and Andy Adler who led the pardon charge. Article here. 

Unrelated, details below on the Celebration of Life for Paul Donnelly. 

Monday, June 2, 2025 @ 10:00 am. The service is at Dignity Memorial's Forest Lawn Funeral Home 2401 Davie Road, Davie,  FL 33317

Celebration of Life by John Byrne on Scribd

Breaking--Judge Ed Artau nominated for open SDFLA district court seat (UPDATED)

By John R. Byrne

Hot off the presses. President Trump has nominated Judge Ed Artau, who sits on Florida's Fourth District Court of Appeal, for Judge Scola's open district court seat. Here's the Truth Social Post announcing the nomination. 

UPDATE (by DOM) -- Hi everyone.  Quick update -- In addition to Artau for Scola's seat, Trump has nominated 4 others for Florida seats -- Jordan E. Pratt, John Guard, Anne-Leigh Gaylord Moe, and Kyle Dudek.

In addition, interim U.S. Attorney Hayden O'Byrne's time was up, but our court appointed him as U.S. attorney until Jason Redding Quinones takes over.

And finally, the legal community is abuzz over the nomination of Emil Bove to the Third Circuit. 

Editorial by Judge Luck and Judge Altman

By John R. Byrne

Many of you have likely heard about the shocking and tragic murder of a young Israeli couple outside the Capital Jewish Museum after they had attended a gathering of the American Jewish Committee. This should hit close to home, as the AJC just recently hosted several of our judges at an AJC event on Watson Island. The Dispatch has published an editorial written by four federal judges, including Judge Luck and Judge Altman, addressing the incident. Worth a read. Linking to it here. 

FBA event coming up

 

RIP Paul Donnelly

What an absolute tragedy.  Paul Donnelly, a really good guy and great lawyer, died this morning.  He was in federal court waiting to be called for a sentencing hearing before Judge Becerra.  The marshals and co-counsel did all they could until rescue arrived.  He died pursuing justice.  

Really awful.

Sitting it Out

By John R. Byrne

Want to make sure the Supreme Court never hears one of your legal disputes? Sign them all to book deals. At least, that might be a way to avoid the justices from considering your case. 

This past Monday, six justices--Alito, Sotomayor, Gorsuch, Barrett and Jackson--recused themselves from considering the cert petition in a case called Baker v. Coates. The plaintiff (Baker) was an author who sued another author (Coates), claiming that Coates's book, The Water Dancer, plagiarized his book. The trial court dismissed the complaint and the Second Circuit affirmed. And that's where the lawsuit will end. Because of the recusals, the Supreme Court lacked the requisite quorum (the magic number is 6) to consider Baker's cert petition.

Though the justices didn't say why they recused (they aren't required to), the speculation is that it's because a party in the case owns Penguin Random House, which has published (or plans to publish) books by Sotomayor, Gorsuch, Barrett, and Jackson. So, by federal statute--28 U.S.C. § 2109--the Second Circuit becomes the final arbiter of the dispute. Newsweek covers it here. 

Unrelated, the Miami New Times just ran this list featuring "22 Old School Miami Restaurants." Some classics on this list. Still haven't tried a hot dog from Arbetter's.

Eleventh Circuit Strikes Down Protection of Children Act

By John R. Byrne

You may remember a few years back there was some press coverage about kids allegedly attending drag shows in Florida. That led to the Florida legislature passing the Protection of Children Act, which made it a misdemeanor to admit a child into an “adult live performance.” The statute actually defined that term to track the Supreme Court’s three-pronged “Miller Test” (the test uses language that probably sounds vaguely familiar to you—phrases like “appeals to the prurient interest” and “lacks serious literary, artistic, political, or scientific value,” etc.). Still, the court—in a majority opinion by Judge Rosenbaum joined by Judge Abudu—held the statute was unconstitutionally vague, focusing on the statute’s reference to “lewd conduct,” which the court said was an ambiguous phrase that would necessarily sweep in some protected speech.

This might be headed for an en banc hearing.  Judge Tjoflat wrote a lengthy dissent and at least one other court, the Sixth Circuit, ruled differently when examining a similar statute. See Friends of George's, Inc. v. Mulroy, 108 F.4th 431, 439 (6th Cir. 2024). 

Opinion by John Byrne on Scribd

Lawyers Hit with Sanctions when AI Breaks Bad

By John R. Byrne

Magistrate Judge Matthewman just issued a stern warning to lawyers practicing in our district: don't throw your brief drafting car keys to artificial intelligence. A lawyer used AI to do some research and dropped one of the AI-generated citations into his response brief. The problem? The case was fictional. When opposing counsel and the court figured it out, it became a question of sanctions. Because the lawyer came clean relatively quickly, the court didn't go with the nuclear option (no striking of pleadings or the like). Still, the sanctions were meaningful and even extended to the attorney who is serving as local counsel for the out-of-town lawyer who drafted the brief. Opinion is below. 

Another wild "AI-gone-wrong" story involves a "Summer reading list for 2025" article that was published this past Sunday in several prominent newspapers, including the Chicago Sun-Times and The Philadelphia Inquirer. The article recommended several novels, including "The Last Algorithm," by Andy Weir, the author who wrote "The Martian." But Weir didn't write The Last Algorithm. Nor did anyone else, for that matter, because the novel doesn't exist. The author of the article used AI to come up with a list of books and didn't bother checking that list before the article went to print. “I just straight up missed it,” the author told the Chicago Tribune on Tuesday. “I can’t blame anybody else.”

Be careful out there, whether you're reading or writing!

Versant Funding Llc a Delaware Limited Liability Company Plaintiff v Teras Breakbulk Ocean Navigatio by John Byrne on Scribd

SDFLA updates

 1.  Jason Reding Quiñones is on his way to becoming the U.S. Attorney for the SDFLA.  Via the Miami Herald:

Miami-Dade County Judge Jason Reding Quiñones took a big step on Thursday toward being confirmed as the top federal prosecutor in South Florida, as the Senate Judiciary Committee voted along party lines in favor of President Donald Trump’s pick for the region’s high-profile law enforcement post. The Republican-led committee vote 12-9 for Reding to head the U.S. Attorney’s Office for the Southern District of Florida, making him the first nominee for such a position in Trump’s second term to be sent to the full Senate for confirmation.

2.  A former intern at the U.S. Attorney's office can sue after the 11th Circuit reverses dismissal in part.  Via law.com:

The U.S. Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part a case regarding a former intern of the U.S. Attorney’s Office for the Southern District of Florida who alleged he was unlawfully terminated and that his superior spread defamatory statements about him to media outlets.

***And the U.S. Eleventh Circuit affirmed the district court’s ruling in full—except for one issue.

“While some of Lehr’s alleged actions fall within the scope of her employment, sending Mullane’s hearing transcript to members of the press does not,” the Court ruled.

“If true, the sending of the hearing transcript and related documents to the media would fall outside the scope of Lehr’s employment," the Court ruled. "Lehr would thus not be entitled to protection under the Westfall Act with respect to that alleged act.”

3.  I missed the event, but a few weeks ago Judge Williams interviewed Judge Abudu at the federal courthouse.  I heard it was an incredible event with a lot of energy and enthusiasm.

What's going on in Broward?

I'm not sure what to make of this, so I'll leave it up to you all.  But a Broward state judge has gone law-viral for campaigning on a fake recording and a self-published book.  From Law.com:

A book about alleged salacious goings-on in the Orange and Osceola circuit courts by a former employee found its way into a Broward judge's 2024 election campaign.

Now the Florida Judicial Qualifications Commission has filed a Notice of Formal Charges against Broward County Judge Lauren Nicole Peffer, accusing her of quoting a book she admitted never having read and not exercising "due diligence to determine the reasonableness of the author's claims."

The book's author is a former Ninth Judicial Circuit employee whose writings she allegedly used to "help her campaign," according to the JQC.

Friday, the judge took responsibility.

"The JQC has found probable cause that during my campaign to seek my current judicial position, my reference to content created by a third party—to whom I have absolutely no ties—was a violation of the Judicial Canons which require a judge to act in a manner that instills public confidence. My sole intent was to provide an example of the scrutiny a judge faces and why the judiciary must hold itself to the highest moral standard. While unintentional, I take responsibility for my actions and apologize for the unfortunate effects the reference may have caused my fellow judiciary members," she wrote in an email. "I am dedicated to serving the people of Broward County, and will continue to uphold the highest level of judicial integrity."

The JQC’s Investigative Panel, following a March 28 meeting, found probable cause for formal proceedings pertaining to Peffer’s use of the self-published e-book, The Ninth Circus Court of Florida, My 30-Year Job from Hell!, by "terminated" technology officer and self-proclaimed whistleblower, Brett Arquette of Orlando.

State court has all the fun... 

Cool Q-A Coming Up

By John R. Byrne

This should be fun. A conversation on May 22 between Judge Ruiz and attorney Roman Martinez, a partner at Latham & Watkins who has argued 15 cases in the Supreme Court (Martinez is also the nephew of former US Attorney, Bob Martinez). Martinez was in the news recently when, during a SCOTUS oral argument, Lisa Blatt accused him and the Solicitor General of lying (Blatt eventually withdrew the accusation).

Register here. Only 29 spots left!

Diddy openings

 Lots of news coverage of the opening statements in Diddy's case. I love this stuff.

The prosecution was as expected -- very straightforward (via Vulture):

“To the public, he was Puff Daddy or Diddy — a cultural icon, a businessman, larger than life — but there was another side to him, a side that ran a criminal enterprise,” [Emily] Johnson said, adding that over the course of two decades, Diddy engaged in offenses such as sex crimes and kidnapping. For years, Diddy “forced” Cassie to have sex with male escorts while he watched and recorded the encounters. “The defendant told Cassie that if she defied him again, he’d publicly release the videos of her having sex with male escorts, which he kept as blackmail,” Johnson said.

“This case is not about a celebrity’s private sexual preferences,” she said. “The defendant made women have sex when they did not want to.” She said Diddy threatened them, drugged them, and beat them into compliance. Once, Diddy became so mad at Cassie that he “stomped repeatedly on her face” in an SUV. Another time, Cassie felt like she was choking when Diddy “made an escort urinate in her mouth.” Johnson also said that another accuser, referred to as “Jane” in court, fell into Diddy’s dark web in 2020. After a few months together, Diddy introduced her to freak-offs. Jane participated because she cared about Diddy and thought it would lead to more time together, not because she liked them. Jane wanted the escorts to wear condoms but “many times, the defendant didn’t let them,” Johnson said. Another accuser, “Mia,” worked for Diddy. Johnson said that Diddy forced himself on Mia multiple times.

The defense opening was by Mark Geragos' daughter, Teny Geragos. And from the transcripts, it looks like she did a really nice job:

Yes, Teny Geragos tried to portray Diddy as a guy who was, indeed, a bad boy — but not one who committed sex trafficking: “Sean Combs is a complicated man, but this is not a complicated case — this case is about love, jealousy, infidelity, and money.” People were fascinated by Diddy, Geragos told jurors. “People really loved him,” she said. Geragos gestured at Diddy and he stood, facing the jury, hands in pockets. “His name is Sean Combs.” Geragos said that Diddy admits to committing domestic violence but that this was not the same as sex trafficking. “When he drank or did the wrong drugs, he would get violent,” Geragos said. “He is not proud of that, and that’s something we’re going to own.” While there are things about Diddy’s sex life “that may make you uncomfortable and may not be what you like to do in your bedroom,” she said, these were private consensual acts in keeping with the “swinger’s lifestyle.”

The WaPo has a blow by blow of the trial here.

RIP David Souter

We need more of him.

From his former law clerk, Noah Feldman:

David Souter, the former US Supreme Court justice who died at 85 on Thursday, was sometimes mistakenly thought to have turned into a liberal after being nominated by President George H.W. Bush on the expectation that he would be an ideological conservative.

History will show the opposite: Souter was among the most consistent, principled justices ever to have sat on the Supreme Court in its 235-year history. His jurisprudence was steeped in the value of precedent and the gradual, cautious evolution of the law in the direction of liberty and equality. A New Englander to the core, he said what he meant and meant what he said. At a moment of unprecedented threat to the rule of law, Souter’s career stands as a model of judicial strength and resilience tempered by modesty and restraint. If the court follows his example, the Republic will survive even the serious dangers it is facing now.

At his confirmation hearings, relics of another time, Souter spoke openly of his admiration for Justice John Marshall Harlan II, known for his explanation that constitutional liberty is derived from a “tradition” that “is a living thing” and cannot be “limited by the specific guarantees” of the text. The key to Souter’s judicial philosophy was the idea, derived from the common law method of precedent and also linked with the conservatism of Edmund Burke, that the rule of law works best to protect us when it proceeds by slow steps attuned to social change, not by leaps forward or backward that produce backlash and end up rejected.

The most famous expression of Souter’s precedent-based view came, with characteristic modesty, in a joint opinion that he cowrote with Justices Sandra Day O’Connor and Anthony Kennedy in the 1992 case of Planned Parenthood v. Casey. The Casey decision upheld the abortion right laid down in Roe v. Wade on grounds of stare decisis, respect for precedent, even as it distanced itself from Roe’s logic.

The justices explained that overturning Roe “would seriously weaken the court’s capacity … to function as the Supreme Court of a Nation dedicated to the rule of law.” In a sentence that exemplifies Souter’s complex-yet-subtle style, the justices wrote that the court’s power lies “in its legitimacy, a product of substance and perception that shows itself in the People’s acceptance of the judiciary as fit to determine what the Nation’s law means and to declare what it demands.”

Jewish American History Month at the court

It was a packed house yesterday at the Federal Courthouse as Beth Bloom led the way for a wonderful event -- it started with a video put together by Bobby Gilbert (featuring Judges Stanley Marcus and Joan Lenard) and then moved into an interesting discussing between Judge Roy Altman and Dan Senor. Good stuff.

Chief Justice Roberts implores judges to check the other branches

 From the NY Times:

Chief Justice John G. Roberts Jr. defended the independence of the judiciary and denounced any attempt to impeach judges over disagreements with their rulings during rare public remarks on Wednesday evening.

“Impeachment is not how you register disagreement with a decision,” the chief justice told a crowd of about 600 people, mainly lawyers and judges, gathered in Buffalo, his hometown.

The remarks were his first since issuing a similar, though also unusual, written statement in March in response to threats by President Trump and his allies to impeach federal judges who have issued decisions against administration policies.

The chief justice did not mention the president directly in his comments on Wednesday, and he did not elaborate further in his answer about threats of impeachment, which he gave in response to a direct question during an event to commemorate the 125th anniversary of the U.S. District Court for the Western District of New York.

But the commentary was nevertheless notable given that justices typically avoid weighing in on political matters. His comments came less than a week after another justice, Ketanji Brown Jackson, denounced attacks on the judiciary during remarks at a conference for judges held in Puerto Rico.

Justice Jackson criticized what she called “relentless attacks” on judges, as well as an environment of harassment that “ultimately risks undermining our Constitution and the rule of law.”

“ Across the nation, judges are facing increased threats of not only physical violence, but also professional retaliation just for doing our jobs,” Justice Jackson said.

Chief Justice Roberts spoke during an hourlong conversation with U.S. District Court Judge Lawrence J. Vilardo, a longtime friend, who at one point asked the chief justice to expound on his views on judicial independence.

“It’s central,” Chief Justice Roberts responded. He added that the job of the judiciary was “to obviously decide cases but in the course of that to check the excesses of Congress or the executive, and that does require a degree of independence.”

The note to judges -- don't bend the knee: 

The Zone of Death

By John R. Byrne 

Not SDFLA related, but fascinating nonetheless. Is there a Zone of Death in this country where you can commit a crime without consequence? Arguably, yes. The other day, attorney Derek Leon told me about a crazy federal criminal case arising out of the District of Wyoming. 

Back in 2005, a man named Michael Belderrain shot and killed an elk within the Montana section of Yellowstone National Park (the park spans three states--Montana, Wyoming, and Idaho). Because Congress, for administrative convenience, placed the entire park within the federal district of Wyoming, federal prosecutors charged him in the District of Wyoming with unlawfully transporting illegally possessed wildlife, among other charges.

Belderrain objected to the prosecution, arguing he wasn't subject to prosecution because of the interplay between two provisions of the U.S. Constitution. Specifically, Article III, Section 2 states that "[t]he Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.” But the Sixth Amendment's vicinage requirement demands that the jury be "of the State and district wherein the crime shall have been committed." In Belderrain's case, that was impossible.  No jurors lived within that sliver of land that fell within the state of Montana and the district of Wyoming. (Note: no prosecution under state law was possible because Yellowstone is a federal enclave and states can't enforce state law within the park).

Ultimately, the district court rejected Belderrain's argument, though it acknowledged the problem, writing: "The District of Wyoming is the only district court that includes land in multiple states. Congress created this anomaly when it placed Yellowstone National Park in the District of Wyoming. The Court recognizes the conundrum that presents itself because the literal interpretation of Article III and the Sixth Amendment make it impossible to satisfy both provisions when a crime is committed in the portions of Yellowstone National Park that fall outside of the state of Wyoming." United States v. Belderrain, No. 07-CR-66-D, 2007 WL 9718010, at *2 (D. Wyo. Aug. 8, 2007), aff'd, 309 F. App'x 259 (10th Cir. 2009).

Belderrain ended up taking a plea deal where he promised not to appeal the issue to the 10th Circuit. The Atlantic covered the story in a podcast you can find here. 

Before Belderrain committed his crime, a Michigan State Law professor had sounded the alarm about the Zone of Death in a law review article, which I've posted below. Still, he hasn't succeeded in getting Congress to close the loophole.

Be careful in Yellowstone National Park!

The Perfect Crime by John Byrne on Scribd

BREAKING -- We have a new magistrate judge

Congrats to Detra Shaw-Wilder. The judges voted today and she emerged victorious.  

From her bio:

Detra Shaw-Wilder is a litigation partner at Kozyak Tropin & Throckmorton. She concentrates her practice in complex commercial litigation, business law matters, corporate shareholder disputes and high-level contract and commercial financing disputes. Detra regularly litigates in state and federal court. Having been involved in significant litigation, she has a broad range of trial experience in commercial cases.

Detra frequently participates in panel discussions on complex litigation matters and trial skills programs. She is currently Chairperson of the Business Litigation Committee of the Florida Bar Business Law Section and Vice President of the University of Miami Law Alumni Association. Detra is a past Board Member and Region XI Director for the National Bar Association. She is also a member of the Federal Grievance Committee for the US District Court for the Southern District of Florida and previously served on the Florida Bar Grievance Committee for the Eleventh Judicial Circuit of Florida.

Detra is passionate about community involvement and is involved in several charitable organizations and is a co-founder of the Kozyak Minority Mentoring Foundation. Outside of the practice of law, Detra is a dedicated sports mom and enjoys spending time on the soccer pitch or track field watching her two teenage kids participate in sports.

It's Law Day!

 So why not post this heated exchange from the Supreme Court (here's the whole oral argument) earlier this week (via Law&Crime):

“I had an out of body experience listening to what we argued,” Blatt said of the arguments made by opposing counsel, Roman Martinez, who argued on behalf of the child and Assistant to the Solicitor General Nicole Reaves, who argued in support of the child on behalf of the Department of Justice.

Justice Ketanji Brown Jackson interjected, “I’m over here really trying to figure out what you argued below,” and said that it “might be a little unfair” to characterize Blatt’s argument as entirely consistent throughout the litigation.

Blatt pushed back and denied any inconsistency.

“What is a lie and inaccurate is that we ever said that this court should take the same language and should define it differently,” Blatt said, referring to an argument advanced earlier by the DOJ. “They’re adding words to our mouth.”

Justice Neil Gorsuch interrupted Blatt’s rant.

“You believe Mr. Martinez and the Solicitor General are lying?” asked an incredulous Gorsuch.

“In oral argument? Yes, absolutely,” answered Blatt.

As Blatt tried to elaborate, Gorsuch cut in, with a warning.

“I think you should be more careful with your words,” the justice said.

“Okay well they should be more careful in mischaracterizing a position by an experienced advocate of the Supreme Court, with all due respect,” countered Blatt.

Chief Justice John Roberts jumped in and began to read from A.J.T.’s brief in an apparent attempt to provide context for the inconsistency her opponents had referenced.

“That part we never said,” Blatt interrupted, questioning a portion of the brief that quoted her client’s filing. “Are they quoting?”

“Well, they have quote marks around it,” responded the chief justice to a chuckling courtroom.

Later in the argument:

“Well, it’s part of your job, Justice Kavanaugh, to set the law sometimes and I understand it’s easier for you and you have a lot going on not to set the law,” Blatt charged until she was shut down by Gorsuch, who interjected that he was “still troubled” by the suggestion that opposing counsel “lied.”

“Okay, let’s pull it up here,” was Blatt’s quick retort.

Gorsuch requested that Blatt “reconsider that phrase.”

“People make mistakes,” came Gorsuch’s response, sounding calm. “You can accuse people of making mistakes — but lying,”

“That’s fine,” Blatt interrupted repeatedly.

“Ms. Blatt, if I might finish,” said an exasperated Gorsuch. “Lying is another matter.”

Gorsuch next read from Blatt’s brief as Blatt peppered with interruptions of, “yep,” and “right” several times.

When Blatt tried to interrupt again and continue her argument, Gorsuch snapped, “I’m not finished.” The justice went on to ask that while reasonable people could disagree, couldn’t the argument in Blatt’s brief could be interpreted in precisely the way opposing counsel had characterized it in their comments to the bench?

“No,” said Blatt, then tried to continue.

“Ms. Blatt!” interrupted an audibly annoyed Gorsuch.

After a bit more exchange, Gorsuch finally demanded that Blatt withdraw her previous accusations of lying against opposing counsel — which Blatt finally did.