Judge Leibowitz strikes down § 611 non-citizen voting statute (as applied)

By David Oscar Markus

Judge David Leibowitz issued an important 31-page opinion today holding that Congress had no power to pass 18 U.S.C. § 611, the federal statute that makes it a crime for a non-citizen to vote in a federal election. The government alleged that Chelsea Cox voted in Broward County in 2020 knowing she was not a citizen. It charged her with a misdemeanor. Judge Leibowitz appointed Paul Clement's firm as amicus, ordered a second round of briefing, and held oral argument. Then he held the statute unconstitutional as applied to Cox and dismissed the Information.

You gotta read this entire opinion.  It's awesome.

It opens:

This is an unusual criminal case. It rests upon a forty-year-old federal statute, 18 U.S.C. § 611, that prohibits the act of voting in a federal election by a non-U.S. citizen. Until very recently, no federal court has been presented with the following question about that statute: Did Congress have Constitutional authority to enact it?1 That’s unusual, all by itself.

But this case is even more unusual than that, because the Government’s principal defense of the statute’s constitutionality invokes a single Supreme Court case that is very, very weak. Let me say that a different way. The leading case cited by the Government to uphold the statute is of “minimal precedential value” (that’s not my characterization, it’s Justice Scalia’s; we’ll get to that), and the application of other binding precedent shows that the Government’s leading case simply does not control this one. So why does the Government lead with such a weak hand? Because it’s the best hand it can play. And why is that? Because the text, structure, and original public meaning of the Constitution show that Congress does not have the constitutional power to enact this statute. 

Cox moved to dismiss and the government responded. Judge Leibowitz then Paul Clement and Chadwick Harper of Clement & Murphy as amicus curiae. They took it on pro bono. The order makes clear they weren't there for either side. Their job was to give the court "a thorough and candid view of the relevant legal authorities." Judge Leibowitz thanked them for acting "in the finest tradition of the federal bar."

The government's main argument was Oregon v. Mitchell, 400 U.S. 112 (1970), where the Supreme Court upheld Congress lowering the voting age to 18 for federal elections. The problem is that Mitchell had no majority rationale. Justice Black relied on the Elections Clause. Four other Justices relied on the Fourteenth Amendment. Five Justices rejected each theory. As Judge Leibowitz put it: "Here's the weird part, and it has real bite for our case."

He walked through Marks and the Eleventh Circuit cases applying it and concluded that Mitchell holds only that Congress can regulate voting age in federal elections. He rejected the government's broad reading. He also rejected Cox's position that Mitchell has no precedential value at all.

The government tried to wave off Justice Scalia's description of Mitchell in Arizona v. Inter Tribal Council as "of minimal precedential value." Dicta, said the government. Judge Leibowitz answered with Judge Carnes: "there is dicta and then there is dicta, and then there is Supreme Court dicta."

Article I, Section 2 and the Seventeenth Amendment tie voter qualifications for Congress to the qualifications each state sets for its own legislature. Article II leaves presidential electors to the states. The Framers considered giving Congress the power to set voter qualifications and said no. George Mason called it a power that "would be a dangerous [one] in the hands of the [federal] Legislature."

Section 611 has an "unless" clause that carves out state and local races where state or local law lets non-citizens vote. So § 611 bars non-citizens from federal races even in a state that lets them vote. Clement called that clause "the most damning textual evidence of Congress' overambitious intent." Judge Leibowitz agreed that § 611 is a voter qualification law. Neither the immigration power nor the Elections Clause saves it. As Justice Scalia wrote in ITCA, Congress may regulate "how federal elections are held, but not who may vote in them."

The amicus brief shows up all over the opinion. Clement's team flagged that § 611 validly reaches D.C. elections, which is why the court ruled only on the as-applied challenge. It rejected the government's reliance on a footnote in Kusper v. Pontikes. And it sketched the statute Congress could have written: one that makes it a federal crime to vote in violation of a state's voter qualifications. The court agreed it would "be difficult to identify a constitutional flaw" in that one.

It's a fun opinion to read.  And there are a bunch of similar cases pending (one went to trial a few weeks ago before Judge Becerra and the defendant was acquitted).  It will be interesting to see how this plays out. 

The SDFLA’s Aileen Wuornos Connection

By John R. Byrne

America is fascinated by serial killers. If you need more proof of that, HBO Max is streaming yet another documentary on Aileen Wuornos, the woman who was convicted of murdering six men. The documentary is titled "Unmasking a Monster." There have been multiple dramatizations of the Wuornos story, including, most famously, the movie "Monster," which earned Charlize Theron an Oscar for her portrayal of Wuornos.

How does this relate to the SDFL, you ask? Judge Raag Singhal actually represented Wuornos. Not at trial, though. His involvement came later. A Broward County judge appointed him to represent Wuornos in connection with complaints she had about her treatment in state prison. In that capacity, Judge Singhal wrote a letter to the justices of the Florida Supreme Court expressing concern about Wuornos's mental condition and, more specifically, whether she was competent to be executed. I'm linking to it here. Acknowledging that Wuornos herself was essentially asking to be executed, Singhal wrote: “It would seem to me that we should not be eager to execute an individual simply because she is a volunteer.” You can hear Judge Singhal's voice when you read that line, right? 

The letter got the Court's attention. The Court treated Singhal’s concerns as a claim that Wuornos might not be competent to be executed and referred the matter to then-Governor Jeb Bush. A few days later, Bush temporarily stayed the execution and ordered that Wuornos be examined by three psychiatrists. They ultimately concluded that she was competent to be executed, and Bush lifted the stay. Wuornos was executed by lethal injection on October 9, 2002.

One of Those "Only in Miami" Cases

By John R. Byrne

Ever been passing through the Grove and spotted a “diminutive, nattily dressed fellow with dark, bushy eyebrows and a conspicuous toupee”? If so, you may have seen Leslie Roberts, the man the Miami New Times describes as the “notorious” Miami art dealer. 

Now a federal judge is looking for him.

Roberts, who previously pleaded guilty and served prison time for selling forged Peter Max works, was supposed to be in federal court last Friday for another sentencing. This time, he’s being sentenced for selling forged Andy Warhol works.

But he didn’t show up.

Judge Altman has continued the sentencing for a week while the government and Roberts’s lawyer try to find him.

The Warhol forgery scheme was quite elaborate. It even involved a co-conspirator posing as a “senior art appraisal authenticator” to authenticate the works. The guy reportedly showed up dressed in black and wearing white gloves and everything.

I’m sharing an article here that includes a picture of Roberts.

A friendly bit of advice: If you see him, exercise caution regarding any significant art purchases.

TVPA Trial Regarding the Siege of the Palace of Justice in Bogotá Concludes

By Jordi C. Martínez-Cid

Two weeks ago I wrote about the opening of Urán, et al. v. Plazas Vega, No. 0:22-cv-60338-RAR, the Torture Victim Protection Act case against retired Colombian Colonel Luis Alfonso Plazas Vega arising out of the 1985 siege of Bogotá’s Palace of Justice. On September 17, the jury returned a unanimous verdict of not liable on every count. Col. Plazas was cleared of both a conspiracy theory and a command-responsibility theory, as to both the torture and the extrajudicial killing of Magistrate Carlos Horacio Urán Rojas.

For those who didn’t follow the trial, I’ll say it again, the Miami Law Human Rights Program’s Substack did a remarkable job of it and it is from them I am getting most of my information. This post won't do it justice, so check it out for yourselves here: https://miamilawhumanrightsprogram.substack.com/p/uran-et-al-v-plazas-vega.

Some highlights from my reading. Plaintffs hired Forensic Architecture, a research group that painstakingly synchronized forty-year-old news camera footage, military radio traffic, and witness statements into a single reconstructed timeline. Both sides spent a tremendous amount of time on this as you might imagine. A former military informant was called to testify and was crossed. A former auxiliary magistrate who testified he saw Mag. Urán’s body on the Palace floor was confronted with a 1986 video of himself saying, three times, “I didn’t see him.” Even Col. Plazas himself testified, insisting that his command was limited and that overall command belonged to General Jesús Armando Arias Cabrales. He was quoted as saying that “You can't shoot at the enemy and ask guerrillas for ID at the same time.” Pressed on inconsistencies with his own prior declarations and five books on the siege, he repeatedly told plaintiffs’ counsel some version of either “I don't remember” or “this happened 40 years ago.”

In closing, plaintiffs’ counsel argued that “Urán survived M-19 [the guerilla group] . . . but he did not survive the Colombian military.” The defense’s response was more clinical: “The tragedy is clear. The connection is not.” Judge Ruiz instructed the jury that they were not bound by the Colombian courts’ own findings of Col. Plazas's 2010 conviction and his 2015 acquittal, but that they could give them whatever weight they thought appropriate. After eight trial days and a little over three hours of deliberation, which included three questions from the jury, the jury submitted a complete defense verdict. President Abelardo de la Espriella, who I had mentioned in my last post for having expressed support of Col. Plazas, reiterated his full support.

Credit: Forensic Architecture's 3D model of the Palace of Justice and Plaza de Bolívar.

2026 S.D. Fla. Hispanic Heritage Event

 By Jordi C. Martínez-Cid

Yesterday was the district's Hispanic Heritage event featuring José Herrera Paz, a partner at Hinshaw Culbertson; Aymee Valdivia, a partner at Holland & Knight; Amys Serret, Chief Justice Couriel's law clerk (and soon to be law clerk to Chief Judge Altonaga); and moderated by Patricia Sánchez Abril, Dean of the UM Law School. Assistant County Attorney Fabiana Cohen made the introductory remarks.

The panel was about whether Miami is still the gateway to the Americas. The answer is yes, but I think we all anticipated that. What stood out and made the event so positive was the passion of the presenters and the sense of pride it helped generate about our community and our country. The American Dream is still alive, and though each of the presenters had their own difficult journey, there was a sense that, at least in Miami, the community at large wanted them to and helped them succeed.

The event was well attended and as always, there was way too much food at the reception. Special thank you to Judge López-Castro (back of head pictured below) and Judge Hernández who chair the committee that puts on the event.

Why was this objection sustained?

By David Oscar Markus

 CourtTV has some background on this fascinating pro se murder defendant:

Tomasz Kosowski, 47, has pleaded not guilty to a charge of first-degree murder in the death of Steven Cozzi, 41, who disappeared in March 2023. Cozzi was representing a group of people being sued by Kosowski at the time of his disappearance; prosecutors say Kosowski, angry and frustrated over the lawsuit, killed the victim in a bathroom at Cozzi’s law firm. Kosowski, a Dartmouth Medical School graduate, is representing himself at trial and has waived his right to a jury, meaning Judge Joseph Bulone will decide his fate.

I love his cross:

During Tuesday’s cross-examination, Kosowski focused on what prosecutors said he did: kill the victim in the bathroom, then load the body into a Gorilla Cart that he wheeled to his truck. Then, prosecutors said, Kosowski eventually moved the body to a second car, drove it to a dumpster and disposed of it. Despite extensive search efforts, Cozzi’s remains have never been found.

"How did I get that Gorilla Cart onto the truck?” Kosowski asked. “From what I recall, [Cozzi] weighed about 190 pounds,” Bolton said. “It’s a movable amount of weight. It can be lifted. It was in a wagon. But that’s an amount of weight that can be picked up and put in the bed of a truck.”


Kosowski: “Are you physically fit?”
Bolton: “I would think so.”
Kosowski: “Do you exercise?”
Bolton: “I do.”
Kosowski: “Do you lift weights?”
Bolton: “I do.”
Kosowski: “OK, would you be willing to help in a demonstration?”
Bolton: “Yeah, I could. Sure.”

Kosowski pointed at a desk in the room and said it measured 30 inches high—close to his Tundra’s 28 inches. “I would say that’s a pretty good analog, maybe a little bit less, of the height that somebody would have to lift a person to load it onto the Toyota tailgate,” Kosowski said. “Now, we have a Gorilla Cart in evidence right now. What I propose we do is that we take that Gorilla Cart, we ask for a volunteer that’s approximately 190, 195 pounds to get into that Gorilla Cart. And I would like you to lift that Gorilla Cart with that person onto the desk.”

Prosecutors objected to the proposed demonstration; Bulone sustained it, saying that Kosowski had made his point. But the defendant wasn’t done. “He’s telling you,” Kosowski said, pointing at Bolton, “that I committed the murder, and he’s trying to kill me for it,” he added, pointing to the prosecution team. “That is their theory. The least they have to do now is show me that this is plausible. Now, because of my career, I know what it’s like to transfer 195-pound people all the time because I transfer people from … OR tables to gurneys all the time, all right? If your theory is real, you should have no problem lifting that cart up with a 195-pound person onto that desk.”

Bulone again denied Kosowski’s request but said he would consider it.

But why was the objection sustained??

Here's a video of the exchange.  

Tom Goldstein strikes back

By David Oscar Markus

 I am biased here, I admit.  I like Tom and am rooting for him.  I think the trial was way overblown and the consequences are absurd.  I'm glad to see that he has a great appellate lawyer and lots of amicus supporting him.  You can read those briefs here and here.

Bloomberg covers it:

A former federal prosecutor who once served as personal counsel to President Donald Trump backed a new trial for convicted former Supreme Court lawyer Thomas Goldstein, in a friend-of-the-court brief outlining pervasive “prosecutorial misconduct.”

The brief, filed by amicus John Dowd in support of Goldstein’s Fourth Circuit bid for a new trial on federal tax and mortgage fraud charges, condemns what it calls the government’s “convict-by-any-means-necessary approach.”

Goldstein’s appeal identifies what it calls “fatal flaws” in the prosecution — withheld evidence, problematic jury instructions, and improperly excluded evidence — but the conduct underlying those problems “was only part of a far broader pattern of impropriety,” Dowd wrote.

From start to finish, he said, the Justice Department “withheld evidence, mischaracterized the facts, and unpredictably shifted positions to find any workable way to target Goldstein.”

The amicus brief also claims the government misled the court repeatedly, including in its efforts to extend the statute of limitations on some of the charged offenses.

Dowd was a prosecutor in DOJ’s Tax Division and chief of an organized crime strike force in the Criminal Division before entering private practiceHe is well-known for representing Trump, for a time, in former special counsel Robert Mueller’s investigation into alleged collusion with Russia. He resigned while the investigation was still underway.

Alleged Russian Plot Involves Cuban "God"

 By Jordi C. Martínez-Cid

This a glib title for an allegedly serious plot being charged out of the Southern District of New York. The indictment chargies five people, allegedly working at the direction of Russian military intelligence, with conspiring to finance terrorism and, for three of them, to commit murder for hire. Two of the five are Cuban nationals.

The defendants are: Yuri Khrameev, 63, a retired Russian intelligence colonel; his son Kirill Khrameev, 27, allegedly an FSB officer; Oemis Romagoza Durruthy, 35, a Cuban national; Yaidel Delgado Suarez, 35, also Cuban, known as “Viking”; and Angel Eduardo Castro, 22, a Venezuelan national. All five remain abroad and none is in custody. Prosecutors allege that in 2026 the network recruited a Venezuelan immigrant in Brooklyn to surveil, and ultimately offered $40,000 to “eliminate,” a Russian dissident believed to be living near Washington, D.C. A parallel 2025 thread allegedly involved an American recruit near the Estonia-Russia border, offered roughly $25,000 to kill a man in Vilnius, Lithuania, for “telling lies about Russia,” and arson jobs when he declined. In 2024, the network is separately accused of directing actual arson and sabotage attacks on businesses and infrastructure in Poland, the Czech Republic, Romania, and Lithuania.

Which brings me to Mr. Romagoza.  By the government’s account and international reporting, he has spent at least the last seven years in Petrozavodsk, Russia, teaching salsa at a studio called Made in Cuba. He married a Russian woman in 2022 and took her citizenship. By 2023, evidently under financial strain, he began recruiting on Facebook and Telegram—offering $1,500 and bonuses per “job” to Latin Americans chasing construction work in Poland or mercenary contracts in Ukraine—under the aliases “Adrian” and, I am not making this up, “Dios.” Spanish for God. He allegedly coordinated the attacks in Prague and Lithuania in 2024 and, as recently as November 2025, obtained surveillance footage of the Washington-area dissident’s home.

Less surprising to me than a Cuban giving himself the call sign God is that, as of yet, there is seemingly no tie to the dstrict. But there is something almost novelistic about a man who by day taught dance to Russian retirees and by night, under the name God, allegedly ran a transcontinental sabotage-and-recruitment operation for Russian Intelligence.  How can that not have anything to do with Miami? Movie to feature Andy Garcia and Nestor Carbonell.

CLEs, Mentorship Opportunity, and UM

By John R. Byrne 

1. The Florida bar has added some exotic CLE requirements in recent years, including professionalism and technology. Take it from someone who just squeaked by his recent CLE credits deadline, some of those are harder to come by than you'd think. But you have some excellent CLE opportunities coming up here courtesy of the South Florida Chapter of the FBA.

• September 24, 2026 (Thursday) @ Boies Schiller Flexner LLP: Demystifying Artificial Intelligence with Judge Damian, Magistrate Judge Louis, attorney Mark J. Heise and FIU law students Zachary Stangl. 1.5 General CLE Credits, .5 Ethics and 1.5 Technology. You can register here.

• October 21, 2026 (Wednesday) @ Zoom: Navigating the Local Rules: Guidance from the Bench and Bar with Judge Ruiz, Magistrate Judge Elfenbein, and attorneys Ryan Stumphauzer and Michael Mikulic. 1 General CLE Credit. You can register here. 

2.  If you're interested in serving as a mentor for local law students, you should attend the FBA's Law Student Mentorship/Networking Happy Hour on October 14 @ Batch Gastropub. RSVP here. 

3. Miami Hurricanes football team is experiencing a resurgence recently, making the national title game last season and currently ranked 5th in the AP poll. Big news dropped yesterday, with the school agreeing to a "historic mega deal with Nike." The 10-year deal, which is worth more than $200 million, goes into effect in 2027. There's a SDFLA connection here, though. According to the Herald article, UM Board of Trustees chairman Manny Kadre was the driving force in making the deal happen. Kadre served as one of Judge Moreno's first law clerks.  

Get Your FBA Installation Tickets!

By John R. Byrne

Individual tickets for the South Florida Chapter of the FBA's Installation are now on sale. It's on Saturday, October 3 at the Frost Museum of Science. 

In the tradition of David Letterman, here are the Top Ten Reasons You Should Attend:

10. Drinks and food are free* (*once you pay the price of the admission). 

9. You get to connect with excellent lawyers who regularly practice in this district. 

8. This year, the venue will have air-conditioning! If you attended last year's installation, you know how helpful that is for an indoor event in Miami. We've spared no expense, people. 

7. Our chapter is inviting retired district court and magistrate judges this year. So, you may get a chance to ask Judge Goodman whether any criminal defendant ever admitted to owning horses when he was going through his standard colloquy on indigency. 

6. We're giving out the two big awards---the NED (named after Judge Davis) and the BOB (named after Bob Josefsberg). The NED is being awarded to Judge Gayles and the BOB to David Markus. 

5. This is the first year that we've named the distinguished FBA member service award after Bob Josefsberg and I understand that some of his family may attend the event. It's a nice way to celebrate a really special human being who gave so much to our legal community and the community at large.

4.  There will be speeches (but they'll be short!). I love speeches at events (weddings, investitures, etc.). But we have limited program time so you won't be held hostage for very long. 

3. The event is always well-attended by our federal district court and magistrate judges. You get a chance to speak with them in a setting where there is zero chance of them sanctioning you for any reason. 

2. You're contributing to good causes. The FBA uses profits from the event to subsidize CLE events and to pay for the various community outreach programs it runs, including the Civil Discourse and Difficult Decisions Program. 

1. You get all three bloggers in one room! David O. is getting an award, The Martinez-Cid law firm is a sponsor, and I'm the outgoing president of the FBA and am obligated to attend to hit my contractual incentive payments. 

You can RSVP through this link. 

Lil Durk acquitted in California... with a SDFLA connection

 Big not guilty verdict in Los Angeles on Friday evening.  Lil Durk was acquitted of all counts.  He had a great team of lawyers including Drew Findling and Brian Steel.  

But I know what their secret weapon was -- Christy O'Connor, the former AFPD down here in Miami.  Christy now practices in L.A. and is kicking ass.  Congrats to her and the whole team.

 

Political TVPA Trial Before Judge Ruiz

By Jordi C. Martínez-Cid

Since September 8, a jury before Judge Rodolfo A. Ruiz II has been hearing evidence about what happened inside Bogotá’s Palace of Justice on November 6 and 7, 1985.

If you are like me and had not heard about this until now, in 1985, several dozen members of the M-19 guerrilla movement seized the Palace of Justice. They took hundreds of hostages, including nearly the entire Supreme Court. Then-Colombian President Belisario Betancur refused to negotiate with the guerilla. The military retook the building by force over the next twenty-eight hours, using tanks and heavy weapons. More than one hundred people died, including eleven of the court’s justices. Eleven more people who survived the initial assault, hostages and cafeteria staff supposedly among them, disappeared and were never seen again.

The case is Urán, et al. v. Plazas Vega, No. 0:22-cv-60338-RAR. The three plaintiffs are the daughters of Magistrate Carlos Horacio Urán Rojas, who died during or sometime after the retaking of the palace. The defendant is retired Colonel Luis Alfonso Plazas Vega, who commanded the Cavalry School unit involved in that operation and who has lived in Weston since roughly 2015. The lawsuit was brought under the Torture Victim Protection Act of 1991.

According to reports, Magistrate Urán’s family spent decades believing he died in the crossfire. That supposedly changed in 2007, when evidence surfaced suggesting that he walked (or was assisted) out of the palace alive, in military custody, before he was killed. The plaintiffs’ theory, as laid out in opening statements by Trina Higgins of Wilson Sonsini, is that Magistrate Urán was mistaken for a guerrilla because he had injured his leg, as had a number of the M-19 fighters. He was taken to a triage building called Casa del Florero, was possibly tortured, and was then executed.

Col. Plazas was convicted in Colombia in 2010 for his role in forced disappearances and sentenced to thirty years before Colombia’s Supreme Court reversed that conviction in December 2015 for insufficient evidence of his direct responsibility. The TVPA suit essentially seeks to hold Col. Plazas legally responsible for Magistrate Urán’s death under a preponderance of the evidence standard.

There is a political subplot to the trial too. Colombia’s new president, Abelardo de la Espriella, took office just over two months ago. Days before trial, he called for public support of Col. Plazas, calling him “a hero of the Nation” and describing the lawsuit as a kind of “strategic litigation.” President de la Espriella said it is the State's duty to back its soldiers.

Apart from being noteworthy, it is a fitting blog post for today because of Col. Plazas’s opening statement. His defense counsel, Valerie Hassan, ended the opening by comparing the lasting impact of the assault on the Palace of Justice on Colombia to the impact of September 11 on the United States, functionally arguing that the jury should not allow the magnitude of the tragedy to act as a substitute for actual proof that Col. Plazas is personally responsible. She highlighted the lack of certainty regarding what happened to Magistrate Urán, the presence of multiple military units, and how overall command belonged to General Jesús Armando Arias Cabrales, not Col. Plazas.

Trial is expected to run through September 18, and possibly longer. If you want play-by-play coverage in both English in Spanish, you will not be able to find better than the Miami Law Human Rights Program’s Substack. Their coverage is worth reading and can be found here. They even have wonderful courtoom sketches like the one below.

Credit to the artist, Ignacio Hernández (everyone is getting their accent marks today), FIU College of Communication, Architecture and The Arts

“If you want indictments where there’s no evidence, you have an ethical problem.”

 By David Oscar Markus

That was Joe diGenova today after resigning from being special prosecutor in SDFLA to look into the "grand conspiracy."

What a mess.

From the NY Post:

Counselor to the Attorney General Joe diGenova abruptly resigned Thursday from a sprawling probe into former officials in the Obama administration, The Post has learned.

“I did resign today by letter to the attorney general. I said that it was a privilege and an honor to serve the president and the department, and I was very grateful,” diGenova told The Post by phone on Thursday night.

DiGenova was investigating Obama-era figures who allegedly pushed claims of collusion between Donald Trump and Russia during the 2016 presidential campaign,

Sources said diGenova had lost support from Department of Justice leaders and the White House amid his “grand conspiracy” investigation, with one source suggesting that the 81-year-old prosecutor and former Trump defense lawyer was “slow-rolling” indictments and getting lost down “rabbit holes.”

Asked whether he had lost focus, diGenova dismissed the accusation and shot back: “If you want indictments where there’s no evidence, you have an ethical problem.”

Another source added that the diGenova had been sharing “unrealistic expectations” for the probe with the president about what was possible and not possible, leading to a confrontation with Attorney General Todd Blanche.

Remember that he started with lots of fanfare and pictures, after the last prosecutor -- Maria Medetis Long -- said the same thing...

UPDATE -- Of course all of this is going to lead to fighting at DOJ.  From CNN, which has interviews with a number of inside sources:

Justice Department officials always intended Quiñones, as the top Senate-confirmed prosecutor in the district, to continue to oversee the probe, the people familiar said. The appointment of diGenova was a clear sign that Justice Department leadership didn’t have confidence that Quiñones could deliver, one of them added.

In a recent clash with top Justice officials, Quiñones sought to disavow any responsibility for what has gone wrong with the investigation, one person familiar with the investigation told CNN. Quiñones was told to stop traveling to Washington and elsewhere and to focus on his job in Miami, a person familiar with the investigation said.

A spokesperson for Quiñones didn’t immediately respond to a request for comment.     

Magistrate Judge Louis Denies Bond to Tate Brothers

 By John R. Byrne

We've posted before about the extradition proceedings involving the Tate brothers. These are the two social media personalities who are facing extradition to the UK on allegations that they choked and raped women. Judge Louis denied their request for bond. And when you have material like this to work with, the order writes itself:

"In the audio recording described above, Emory Tate exhorted that one must amass multiple passports, explaining that it is no longer

possible to live 'off the grid' but rather, that one should seek to live on as many grids as possible; he very specifically describes how he has passed himself off to various law enforcement agencies using identification documents issued by different countries as a method of evading law enforcement."

Defense counsel came up with some creative arguments. Among them? The Court shouldn't believe much of what the Tates say publicly because their online personas are built on hyperbole, exaggeration, and performance. Still, when a main pitch to the Court is that it should disbelieve your clients' statements, the boomerang risk is real. You can read the whole order here.

Foundations of the Federal Bench: A Journey of Hispanic Legal Excellence

By Jordi C. Martinez-Cid

I hope everyone enjoyed their Labor Day. The title of the post comes from an upcoming webinar event which features two of our district’s judges. Seems like a good event, requires little effort (given that it is through Zoom), and you get an hour of CLE credit. Flyer below and registration link here.

Also, in order to preserve my spot on the committee, do not let this event deter you from joining the district’s Hispanic Heritage Program on September 23, at 4 p.m. at the Wilkie D. Ferguson, Jr. Courthouse. You can RSVP for that event by emailing FLSD_Program@flsd.uscourts.gov.

Lindsay Clancy should not be tried twice

By David Oscar Markus

Eleven jurors voted to acquit Lindsay Clancy, while one juror held out against acquittal.  After almost two months of trial, more than 80 witnesses, and seven days of deliberations, Judge William Sullivan declared a mistrial on Friday. Plymouth County District Attorney Timothy Cruz said he will decide later whether to try her again.

He should not. And the law should not let him.

Most people wrongly assume the Constitution already takes care of this. The Double Jeopardy Clause says no person shall "be twice put in jeopardy of life or limb" for the same offense. That seems pretty straightforward – the government should get one shot at a conviction.  But the Supreme Court has said otherwise.

It started back in 1824 with United States v. Perez. Josef Perez was tried for piracy, a capital offense. The jury hung.  The Supreme Court explained that the defendant could be tried again where there was “manifest necessity” for the mistrial. Then in 1984, the Court decided Richardson v. United States, in which a jury acquitted the defendant on one narcotics count and hung on the two others. He argued that because the government had already had its chance at a trial to convict him, it should not be able to have a second bite at the apple. Justice Rehnquist disagreed. The failure of a jury to reach a verdict, he wrote, "is not an event which terminates jeopardy."  Justice Brennan was right in his dissent where he said that the defendant was being subjected to a second trial, which the Constitution did not permit.

The Court took up a similar issue about 15 years ago in Blueford v. Arkansas. Before deliberations ended, the foreperson told the judge the jury was unanimous against guilt on capital murder and on first-degree murder, deadlocked on manslaughter, and had not yet voted on negligent homicide. The jury kept deliberating, got nowhere, and the judge declared a mistrial. Chief Justice Roberts wrote that the foreperson's report "was not a final resolution of anything." So Arkansas could retry Blueford on everything, including the two charges all twelve jurors had rejected out loud in open court. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan.

The Supreme Court has cleared a path for Clancy to be tried again. But prosecutors should not do so and the Supreme Court should take another look at this issue.

The prosecution had a chance to put on its best case. Twelve people listened to all of it. Eleven of them had reasonable doubt. Judge Sullivan told the jurors on Thursday that a strong probability of guilt is not enough. By any honest measure, the prosecution failed to carry its burden.  If the government cannot prove its case at a trial, that should be the end of the matter.

Think about what a retrial means for Clancy. She goes back to the state hospital and waits. It could be a long time. Another seven weeks of testimony about the deaths of her children. Another set of experts. Another bill. Another enormous imposition on jurors, court staff, the judge. 

Plus, it’s not fair.  The prosecution gets a preview of the defense theory, its cross-examinations, its opening and summation. One of the only advantages the defense has in a criminal trial is the element of surprise.  All of that is gone in a retrial, which is why prosecutors typically do not lose twice in a row.

Of course, Massachusetts did just that recently. Karen Read's first jury hung in July 2024. The Norfolk County District Attorney tried her again. In June 2025, the second jury acquitted her of second-degree murder and leaving the scene, and convicted her only of operating under the influence. She got a year of probation. It took two trials and years of her life to get there, in addition to the huge expense to taxpayers.

The Supreme Court explained in Green v. United States, that the State, "with all its resources and power," should not be allowed to make repeated attempts to convict a defendant where he was acquitted because it subjects a defendant to "embarrassment, expense and ordeal" and compelled “him to live in a continuing state of anxiety and insecurity.” So too with a retrial after a hung jury.  Those costs do not disappear because the first jury deadlocked.

The Supreme Court should revisit this issue. "Twice put in jeopardy" means what it says. Jeopardy attaches when the jury is sworn. If the government cannot persuade that jury, the case should be over.

If the Court will not act, Congress or the States should. Nothing in the Constitution stops Massachusetts from barring retrials after a hung jury.

Cruz can make all of this moot. He can announce that he will not retry Lindsay Clancy. Eleven jurors already told him what they think of his case. The prosecution had the burden to prove Clancy guilty beyond a reasonable doubt and it failed to do so.  That should be it.

Investiture of Magistrate Judge Yeney Hernandez

By Jordi C. Martínez-Cid

Yesterday was the investiture of The Honorable United States Magistrate Judge Yeney Hernandez. Two things stood out. First, Judge Hernandez's story is remarkable. Second, I think everyone who attended left with a very clear picture of Judge Hernandez's character.

Judge Hernandez was born in Batabanó, Cuba, and came to the United States with her parents at a very early age. Raised in Hialeah, she completed her undergraduate education at Duke Univeristy and got her juris doctor from Yale Law School. From there, a clerkship on the Sixth Circuit Court of Appeals, several years at Skadden Arps in D.C., and, from 2017 until her recent elevation, a position as an Assistant United States Attorney in this district. The judge and others relayed the sacrifices her parents made, how hard they worked, and how they encouraged and inspired confidence in the then-future judge. From humble beginnings, to lofty heights. It is inspiring to see a true American dream come true.

All the speakers, including the judge and her husband, AUSA Jason Wu, were great. Full disclosure, Judge Hernandez, her husband, and I, were all in the same class in law school. Also, I was a speaker, but the least of them. All of the speakers hit on the same themes, which is indicative of the judge's quality. Judge Hernandez is a person of integrity, remarkably smart, hardworking, humble, and dedicated to public service. The examples and stories are too many to recount here and my retelling would cheapen the speeches of the aforementioned and Wifredo A. Ferrer, Alejandra López, The Honorable Deborah L. Cook, and the judge's mother, Lismeli Alfonso.

I wish my classmate all the the luck in the world.

Judicial Grace

By John R. Byrne

I clerked for Judge Jeffrey R. Howard, who is now a senior judge on the U.S. Court of Appeals for the First Circuit. He was (and is) a great person and a true gentleman. 

When I started my clerkship, he shared his philosophy when it came to drafting opinions. He never wanted to see drafts that were overly dismissive or critical of the parties making the arguments or the trial judge who made the rulings below. He preferred phrases like, "We disagree" over ones like "The trial court erred" or Party A or B "is wrong." His thinking was that the practice of law is hard enough and taking a shot at a lawyer or another judge, particularly with the benefit of hindsight, isn't productive or gracious.

Just recently, I read a concurrence from one of our own judges, Judge Singhal, that felt like something Judge Howard would have written. 

The case was Georgia Atlas, Inc., et al v. Executive Director of the Georgia Access to Medical Cannabis Commission, et al. Judge Singhal was sitting by designation on a panel that vacated the trial judge's dismissal of a complaint for lack of standing. Judge Singhal wrote separately and said the following:

"On the arguments presented below, the distinction between being heard and obtaining relief was less developed. Our review of jurisdiction, however, is independent, and the arguments before us constitute a fuller presentation of the issues. While I cannot fault the district court on the ruling it reached on what it was given, I must conclude the district court was mistaken. Accordingly, I concur."

I think sometimes judges can lose sight of the stinging effect a negatively worded order or opinion can have on a lawyer (who may have to share that order with an important client) or even a judge (yes, even judges with life tenure). 

Judge Singhal also included the following joke in his concurrence, which I'm sure district judges enjoy telling at the Eleventh Circuit Judicial Conference:

A Supreme Court justice, a circuit judge and a district judge go duck hunting. A duck flies overhead and the Supreme Court justice, before she picks up her shotgun, ponders the policy implications of shooting the duck. How will the environment be affected if she shoots the duck? How will the duck-hunting business be affected if she doesn’t shoot the duck? By the time she finishes, the duck has flown away.

Another duck flies overhead, and the circuit judge goes through a five-part test before pulling the trigger: He lifts the shotgun to his shoulder, he sights the duck, he measures the velocity of the duck’s flight, he aims, and he shoots. And he misses.

Finally, another duck flies by, and the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and tells the other two judges to explain what he did over dinner.

You can read the opinion here. 

Eleventh Circuit Saves False Claims Act

By John R. Byrne

The False Claims Act is one of the federal government’s tools for fighting fraud against the government. Among other things, it allows private individual who are called “relators" to bring qui tam lawsuits in the government’s name. If the suit succeeds, the relator can receive up to 30% of the recovery. Most of time, these people are insiders who are blowing the whistle on something they've seen.

About two years ago, you may have read or heard that a federal judge had declared the False Claims Act was unconstitutional. That judge was Judge Mizelle out of the Middle District of Florida, and she held that the False Claims Act violated the Constitution's Appointments Clause. Judge Mizelle reasoned that, because relators exercise "significant authority pursuant to the laws of the United States" and "occupy a continuing position established by law" they were "officers of the United States" and needed to be "presidentially appointed." Because the False Claims Act didn't require relators to be so appointed, it was, she said, unconstitutional.

The Court's ruling created quite the stir. And no doubt people pondered the logistics and practicalities of having the President of the United States formally appointing whistleblowers to file qui tam actions in one-off case after one-off case.

Well, ponder no longer. The Eleventh Circuit (a panel comprised of Judge Branch, Judge Luck, and Judge Moreno sitting by designation) vacated the court's order dismissing the case and held that the qui tam provisions of the False Claims Act don't violate the Appointments Clause. 

Writing for the panel, Judge Branch concluded that a relator is not a federal “officer” because a relator does not occupy a continuing position established by law. A relator’s job is tied to a particular case, carries no continuing salary, and cannot simply be handed off to a replacement. There is, the Court put it rather pointedly, “no ‘office of relator.’”

That doesn’t quite end the constitutional fight. Judge Mizelle never reached the defendants’ separate arguments under the Take Care Clause and Vesting Clause, so the Eleventh Circuit sent the case back for her to consider those arguments.

In case you're going on Jeopardy soon, the Latin phrase "qui tam" comes from the longer Latin phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which translates to "Who sues on behalf of the King as well as for himself." 

Scribbed is not allowing uploads right now but you can find the opinion here.

Judge Roy Altman cleared

By David Oscar Markus

 An attorney named Katherine Giannamore leaked a judicial complaint against Judge Roy Altman to Above the Law a few weeks ago.  It generated a bunch of whisper buzz among the legal community, which was of course the purpose of leaking it.  

Judge Altman issued a response, which is typically kept confidential.  But he asked Chief Judge Pryor to make it public since the leaker's complaint was out there.  Judge Pryor agreed to make the response and his order public, which can be accessed here.   The conclusion from the Order dismissing the Complaint:

 "Based on these Canons, the Complaint fails to present a basis for a finding of misconduct.  The Complaint makes allegations lacking sufficient evidence to raise an inference that Judge Altman exhibited bias, made inappropriate statements, violated the Code of Conduct, or otherwise engaged in misconduct, and the limited inquiry "demonstrates that allegations in the complaint lack any factual foundation or are conclusively refuted by objective evidence." 

"A lie travels half-way around the world before the truth puts its shoes on in the morning."  That quote (or similar versions) have wrongly been attributed to Mark Twain.  Whoever said it, it's especially true in this era of social media, email, and the like.  So when Above the Law posted the complaint, Judge Altman was wrongly -- and quickly -- smeared.  I have followed Above the Law since David Lat founded it many years ago.  It's a fun website that posts interesting topics.  I hope it posts this Order and Altman's response so that the false accusations against Altman get the same airtime.  

Construction to proceed at the White House

Chief Justice Roberts joined the dissent for this 5-4 opinion.  

In light of this decision, can the Miami mayor demolish the state criminal courthouse and start fresh?

In sad news for me, Killian high school is struggling.  From the Miami Herald:

Lisa Oberlander fondly recalls her time at Miami Killian Senior High in the 1980s. The school was bustling with a large, high-achieving and diverse student body. Its biggest issue back then was overcrowding. The scene in her first year teaching a Digital Arts class at her alma mater has been somewhat different.

In the middle of one of the school’s cavernous “learning lab” spaces, eight students huddled in boxy armchairs, propping laptops on their knees and clicking through a design app. Surrounding them were dozens of empty desks in the darkened, unused parts of the room.

That’s every day at Killian — more space than the students could ever use. Going from 3,700 students in 2004 to just 430 to start this year, the school’s enrollment has declined more, and faster, than any other in Miami-Dade. The state estimates it’s using only 20% of its building’s total capacity.

Finally, the Florida Bar complaint against James Percival has been dismissed.

By DOM

Should judges be using AI?

We know that they are.  Sometimes it jumps off the page.  In fact, here's an article detailing how much it's being done:

To get a baseline, I tested all the published circuit opinions from January 2022, more than 300. Pangram found no signs of AI-generated text in any of them. Not one passage, and not one sentence. Every opinion returned "0.000000%" AI. That gave me some confidence that Pangram was not mistaking the ordinary conventions of judicial writing for AI authorship. (Pangram's methods are insensitive to dates, so I did not worry that the opinions' timing influenced these results.)

The results for 2026 looked very different. More than 50 opinions showed signs of AI authorship. The exact percentages ranged from less than 1% to more than 50% AI-written, with most results clustering near the bottom of that range. Still, the contrast with January 2022 was hard to miss.

 We know judges are using AI.  Should they be using it?

Hispanic Heritage Event: "Is Miami Still the Gateway to the Americas?"

By Jordi C. Martínez-Cid

It has long been said that the city of Miami is the “Gateway to the Americas”—a city where cultures, languages, businesses, cross-border legal matters, international crime, and more collide. In our more interconnected global world, is it still?

The District's Hispanic Heritage Event this year will explore that question through the views of younger practitioners. Panelists will discuss what brought them to the United States, the factors that prompted their move, and the influence those experiences have had on their careers. We will hopefully get more insight on how Miami can regain, maintain, or redefine our unique position.

More information on the event and how to RSVP can be found in the flyer below. As a member of the committee that helps plan this, I hope that you can join us on Wednesday, September 23, 2026, in the Ceremonial Courtroom (13-3) at the Wilkie D. Ferguson, Jr. United States Courthouse. The food at these events is always exceptional.

Judge Becerra Puts FIU Disciplinary Process on Ice

 By John R. Byrne

FIU has a student group that goes by the name "ICEBreakers." The goal of ICEbreakers is to end FIU's agreement to "deputize the FIU police department with the powers of federal Immigration and Customs Enforcement agents."

One of the arrows in ICEBreakers's quiver is public protest. And so when FIU's President, Jeanette Nunez, was interviewing a former pro athlete on FIU's campus on March 13, several ICEBreakers members who were in the audience protested. They did so by standing up between one to three minutes and facing the audience while wearing the same "ICE OFF FIU" T-shirts.

This prompted disciplinary action. FIU sent (most) of the students a letter that stated they had failed to comply with a school regulation and directing them to submit a two-minute "video reflection"  "explaining your understanding of FIU Regulation 110, what is expected under FIU Regulation 110 related to indoor and outdoor areas, and how you will apply what you have learned moving forward." (Sounds kind of like the 2026 version of writing the same sentence over and over again on a blackboard).

In any event, the students instead filed a lawsuit that, among other things, asked the court to enjoin the school from taking action against the students.

Judge Becerra granted the injunction. She held that Regulation 110(3) ran afoul of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), because it categorically bans protests and similar expression inside university buildings whether or not they cause a material and substantial disruption. The protest here, Judge Becerra noted, didn’t appear to cause any such disruption: “[B]ased on the evidence submitted to date, it does not appear that any Plaintiff, or anyone else wearing an ‘ICE OFF FIU’ T-shirt, spoke or did anything other than sit, stand, and walk.”

You can read the whole order here. 

BREAKING -- Legendary Miami reporter Jay Weaver retires

By David Oscar Markus

As long as I can remember, if there was a newsworthy federal case in Miami, Jay was there.  A real institution.  It's strange to think he won't be sitting in the back of the courtroom. His last article was yesterday (about a sentencing in one of my cases).  

It feels a little weird for me to ask Jay for a comment instead of the other way around.  

From Jay: “After 46 years of chasing stories as a reporter, it feels weird to just stop and retire. I wasn’t burned out or bored. But I turned 71 this month, and it seemed like the right time to slow down and start enjoying more of life and the world. I’m gonna miss the federal court beat — all the crazy stories about corruption, fraud and 'funny money,' as Judge Lenard once described the laundered proceeds in a Miami drug case. But I’m really gonna miss the prosecutors, defense attorneys and judges. They’re the ones who made my job so interesting and rewarding. Thanks for the countless tips and comments.”

Alex Mena from the Herald sent this email to the newsroom:

Folks:

After 27 years at the Miami Herald and more than 45 years in journalism, Jay Weaver is retiring.

Jay's career has been defined by relentless reporting, deep sourcing and an extraordinary ability to untangle complex investigations. He has been a force behind some of the Herald’s most consequential journalism.

He has written about a rogue's gallery of corrupt politicians, crooked cops, Ponzi schemers, drug traffickers and steroid-using MLB players. Among his notable works: ground-breaking stories on South Florida's Medicare rackets that highlighted the loss of billions of dollars in government benefits because of local scams by clinic owners, patient recruiters and physicians.

Jay was part of the Herald teams that won Pulitzer Prizes for Breaking News in 2001 for coverage of the Elián González saga and in 2022 for coverage of the Surfside condominium collapse. He was also a finalist for the 2019 Pulitzer Prize in Explanatory Reporting for the Dirty Gold investigation, which exposed an international gold-smuggling network that laundered drug money through illegal Amazon mining operations and into major U.S. companies.

Along the way, Jay earned national recognition for groundbreaking reporting on Medicare fraud, performance-enhancing drugs in Major League Baseball, corruption in Opa-locka, the assassination of Haiti's president, and the Herald's "Shakedown City" investigation into corruption at Miami City Hall. He is also the co-author of two acclaimed books, The Grifter's Club and Dirty Gold.

More than the awards, Jay leaves behind a legacy of fearless reporting, meticulous journalism and a body of work that made South Florida, and the world, better understood.

Please join us in thanking Jay for his remarkable career and wishing him the very best in retirement.

We will celebrate Jay with a newsroom lunch on Tuesday, Sept. 1. More details will follow, but for now, please save the date and plan to join us in sending him off.

Congratulations to Jay on an incredible career.  I hope he enjoys his well-deserved retirement.  

Dimitri Vorbe Entitled to Bond Hearing

By Jordi C. Martínez-Cid

Dimitri Vorbe is a prominent businessman who previously ran one of Haiti’s biggest electrical utilities until a clash with the administration of the since-assassinated President Jovenel Moïse. The U.S. Government claims that Mr. Vorbe supported armed gangs officially designated as foreign terrorist organizations. He was arrested in September 2025 by Immigrations and Customs Enforcement and has remained in custody without a bond hearing (and without an order of removal). A planned deportation to the Dominican Republic seemingly had to be abandoned after the govenrment of that country refused to accept Mr. Vorbe.

On Monday, Judge Gayles ruled that Dimitri Vorbe is entitled to a bond hearing befoer the immigration judge or that he should be removed under reasonable conditions of supervision. The decision is a significant win for Mr. Vorbe’s legal team. In granting the habeas corpus petition, the district court engaged in a complicated jursidictional and adminsitrative-exhaustion analysis, and ultimately reject the government’s position that Mr. Vorbe could remain in mandatory detention based on a letter from Secretary of State Marco Rubio. Secretary Rubio’s letter stated that Mr. Vorbe's presence in the United States could have serious adverse foreign-policy consequences. Mr. Vorbe's bond hearing must occur by August 24 or he must be released, and Judge Gayles is requiring a status report from the parties on August 31. Case number is 1:25-cv-24964-DPG and the order is here.

"District Court" Finds that Race Didn't Predominate

By John R. Byrne

I put "District Court" in quotes because this isn't your typical opinion from a district court judge. Instead, three judges--Judge Britt Grant (from the Eleventh Circuit), Judge Ruiz, and Judge Becerra--sat as the district court. Why? Federal law requires constitutional challenges to congressional or statewide legislative apportionment to be heard by a special three-judge district court. And at least one member of that panel must be a circuit judge. 

The panel actually found that race played a role in the redistricting process. But that's not enough. The plaintiffs in these cases have to prove that race predominated over other considerations when the map drawers drew up the new lines. In this instance, the panel found that the plaintiffs didn't meet their burden.

You can read the opinion, which is replete with colorful maps, here. 

One more procedural wrinkle: if the plaintiffs appeal the denial of injunctive relief, it goes right to the Supreme Court, with no stopover at the 11th Circuit. 

Some Friendly, Random Advice from Judge Huck

By John R. Byrne

Through our years of practicing law, we're constantly learning—whether from watching opposing counsel, co-counsel, or through good old-fashioned trial and error. But one of our judges has quite helpfully published "some friendly, random advice" about federal court practice that should be required reading for every federal practitioner. That judge is Judge Huck, and you can read his tips on his SDFLA webpage. 

But Judge Huck is now taking his show on the road, so to speak. Beginning in September, he is embarking on a CLE breakfast series in which he (and another district judge) will expand on this advice in person. If you're a young professional—a lawyer with four years of practice or less—you can register for one of these breakfasts, which will be held at locations throughout Miami (Coral Gables, Coconut Grove, etc.).

The first breakfast, featuring Judge Huck and Chief Judge Altonaga, will be held at the law firm of Leon Cosgrove Jimenez in Coral Gables on September 9, 2026, and has already been approved for 1.5 Professionalism Credits by The Florida Bar. Space is limited to 20 attorneys. You can register here. 

Oh, and if Judge Huck ever gives you a pop quiz on what the first rule of "Judge Huck Club" is, don't mess it up like I did. It's this: "Judges do not like surprises!" I went with Rule #2, which is to "learn about your judge."

Kudos to Judge Huck for giving back to our federal bar through this CLE series.

SDFLA Judge update

By David Oscar Markus

Two judge updates in our District:

1.    District Judge Jeff Kuntz was informally sworn in today and is now hearing cases in Ft. Lauderdale.

 

2.    Magistrate Judge Brandy Galler was sworn in on July 30 and is hearing cases in Ft. Pierce. 

 Congratulations!

 

Judge Donald L. Graham

 

By John E. Thornton, Jr.:

Shrewd, wise, pensive. Courteous, disciplined, respectful. Cultured, traveled, adventurous. These are the first words that come to mind when reflecting upon the last fifteen years I have known Judge Graham.

I interned for Judge Graham during the summer after my 1L year, and I clerked for him from 2015 to 2017. For those who have served as judicial law clerks, clerking is one of the best legal jobs one can have. Besides the rigorous education clerking provides, its true value comes from the unwritten nuggets of wisdom received from the judge for whom one clerks. For two years, I learned from him—how to: interpret the law; analyze the facts; distinguish effective advocacy from the ineffective; properly prepare for every challenge, no matter how small; and navigate a legal career, an esteemed profession—not industry, while also serving the community in which we practice.

Judge Graham personifies professionalism. He never demands more from litigants or their counsel than what he demands from himself or his staff. Preparedness, thoughtfulness, accountability, excellence, integrity and, of paramount importance, respect for the court. As a jurist, Judge Graham is a perpetual student of the law. Because of that, he approaches every matter with astute clarity, which ensures every case and ruling is handled efficiently and judiciously.

Having served over thirty years on the bench—thirty-four to be exact, Judge Graham has presided over and ruled upon many consequential cases, both locally and nationally. These cases include: Haitian Refugee Ctr., Inc. v. Baker, 1991 WL 330942 (S.D. Fla. Nov. 19, 1991), where he granted the emergency application for a temporary restraining order to halt the United States from forcing the repatriation of Haitians to Haiti; Meek v. Metropolitan Dade Cnty, Fla., 805 F. Supp. 967 (S.D. Fla. 1992), where, in a forty-one page opinion, he ruled that Miami-Dade County’s then-present at-large system of voting violated the mandate of Section 2 of the Voting Rights Act—affirmed on the merits by the Eleventh Circuit Court of Appeals; and Wojcieszak v. U.S., 196 F. Supp. 3d 1319 (S.D. Fla. 2016), where he vacated and set aside the petitioner’s original sentence and concluded that his three prior Florida burglary convictions, because of the elements constituting burglary in Florida, did not qualify the petitioner as an armed career criminal under the Armed Career Criminal Act’s (“ACCA”) enumerated or residual clauses. At a time when ACCA sentencing litigation was exceptionally high, and flooding the courts nationally in light of Descamps v. United States,  Johnson v. United States, and Welch v. United States, Judge Graham was the first Article III judge in the Southern District of Florida to issue an opinion granting a first-filed motion to vacate pursuant to 28 U.S.C. § 2255 based upon Florida’s burglary statute once the legal dust settled.

Before the judiciary, Judge Graham served in the Judge Advocate General’s Corps, United States Army, in West Germany and at the Homestead Air Force Base and then as an Assistant United States Attorney in Miami where he dutifully served that Office as both the Chief of the Narcotics Unit and Special Prosecutions Unit. After that, he went into private practice with Martin Raskin, Esq., where they engaged in criminal and civil trial practice in state and federal courts throughout the United States, including right here in South Florida when Miami’s “Cocaine Cowboys” were at their peak.

As a dedicated public servant, Judge Graham has served as a lecturer in the United States Department of Justice Trial Advocacy Program on behalf of the Department of Justice and Department of Commerce in: Cebu and Manila, Philippines; Shenyang, Hangzhou, Xiamen, and Shanghai, People’s Republic of China; Kathmandu, Nepal; Kampala and Jinja, Uganda; Gaborone, Botswana; Monrovia, Liberia; and Nairobi, Kenya. He has also served as a member of the United States Advisory Board on the Investigative Capacity of the Department of Defense, and as a faculty member for the Trial Advocacy Workshop at Harvard Law School in Cambridge, Massachusetts.

The breadth and depth of Judge Graham’s community activities and professional involvements include having served as a president, board member, or member of the following: Federal Bar Association, South Florida Chapter; National Bar Association; Wilkie D. Ferguson, Jr. Bar Association; District Judges Association – Eleventh Circuit; Council of Florida Bar Presidents; the Just The Beginning Foundation; and the 5000 Roles Models of Excellent Project.

Judge Graham has served as a professional and personal mentor to me. To wit, he graciously agreed to serve as the officiant when I married my lovely wife, Jennifer. That said, I am not the exception. He has provided prescient advice to innumerable law clerks, interns, attorneys, and staff. Judge Graham takes a keen interest in the lives of everyone with whom he encounters, and he guides those who request his stewardship.

Ever the traveler, Judge Graham has traveled to numerous countries and has visited every continent except Australia and maybe Antarctica. Maybe. From traversing rivers in Southeast Asia to exploring jungles in Africa, his knowledge and understanding of many different cultures is only rivaled by his knowledge and understanding of the law. Indeed, he has on multiple occasions spent time with the Maasai people of Kenya, for whom he has an affection and appreciation, who immediately took to him due to his warmth and kindness.

I would be remiss to omit Judge Graham’s affinity for all things Ohio State Buckeyes, especially football. Let’s just say I am glad I was not clerking for him when the Buckeyes played my Florida Gators in the 2007 BCS National Championship Game (the Gators won). But the Buckeyes have won two national championships since then and the Gators only one, the fact of which he will politely remind me when we discuss college football.

Judge Graham is fair, even keeled, and has a presence that fills any room but never seeks the limelight. Indeed, and unknown to many, Judge Graham periodically presides over matters in the Fort Pierce Division, despite sitting in Miami, and he has dutifully done so for years. Unknown to more, he was only the second Black American nominated and confirmed to the federal bench in the Southern District of Florida at a time when there were no Black judges in this District. If Judge Graham ever decides to hang up his robe, unlikely considering his vitality and vigor—he is in the gym four to five times a week, seriously—this community will owe him an unpayable debt of gratitude for his over 40 years of public service.

And with that, I will leave you with a quote I think captures the spiritual essence Judge Graham imprints upon anyone who knows him:

“Success is to be measured not so much by the position that one has reached in life as by the obstacles which he has overcome while trying to succeed.”

-Booker T. Washington

FBA Post Below:

 Judge Donald Graham was nominated to the district bench in 1991 by President George H.W. Bush; he continues to serve as a senior judge. After graduating from law school at The Ohio State University, Judge Graham served in the United States Army Judge Advocate General’s Corps from 1974 to 1979 and in the Army Reserve JAG Corps from 1983-1991. He worked as an Assistant United States Attorney and later as a private criminal defense attorney until he was nominated to serve the Court. In 2004, he was the first judge in the Southern District of Florida to hold a provision of the U.S. Sentencing Guidelines unconstitutional; his decision tracked Blakely v. Washington, decided that same year, and anticipated United States v. Booker the following year, which made the guidelines advisory nationwide.

Former AUSA Will Rosenzweig sues DOJ after being fired

 By David Oscar Markus

We previously blogged about the Rosenzweig saga, including the Golden Hammers.

The next chapter is here -- and the former AUSA has sued (here's the complaint, which is now before Judge Moore and has a blog reference).  He's represented by Margaret Donovan, Dan Fridman, and Adam Fels.

From the Herald:

“The Department’s conduct rests on a single premise: a citizen must forever refrain from criticizing the government and its leaders to remain eligible to serve it,” says the suit, which was filed in Miami federal court. “That rule would force every American who might one day serve to choose between speaking freely now and working for the government later. Conditioning public employment on political loyalty, where a party card rather than merit opens the door to a government job, is a way of life in Havana and Caracas. It has no place here.”

***

The South Florida office — with roughly 120 prosecutors on staff, about half the usual number of lawyers — was once known as one of the busiest in the country, but it’s now under siege. Reding Quiñones, a former Miami-Dade County judge, took over as the U.S. Attorney for the Southern District of Florida in August 2025. In a break from tradition, Reding Quiñones, a member of the conservative Federalist Society and a Trump loyalist, was sworn in by Bondi in Washington instead of by the Southern District of Florida’s chief federal judge. Despite being the head of the South Florida office, Reding Quiñones “never contacted Mr. Rosenzweig about his termination” by Bondi the following month, according to the fired prosecutor’s suit.

Judge Altman Pauses Order Requiring Trump to Send Financial Date to the BBC

By Jordi C. Martínez-Cid

U.S. District Judge Roy Altman has temporarily blocked an order entered by Magistrate Judge Lett that required President Donald Trump to hand over financial records of his business empire to the British Broadcasting Corporation.

This week, the BBC was supposed to receive that financial data through discovery in Trump's ongoing $10 billion defamation lawsuit against the outlet, which claims a 2024 BBC documentary damaged his business and reputation by deceptively editing footage of his speech on January 6, 2021. Non-Party Donald J. Trump Revocable Trust sought an emergency stay of the order requiring financial disclosure arguing the irreperable harm casued by the disclosure of that information and Trump's intent to amend his complaint to eliminate allegations of harms to his business. The amended complaint will supposedly seek damages only related to the purported harm to Trump's reputation. The BBC, however, argues that Trump's financial records remain discoverable because his reputation is closely tied to his business interests. If the case goes forward, what Trump's reputation is and how it was harmed is sure to be interesting.

The order was filed yesterday. Judge Altman agreed with the non-party Trust's argument, calling it "compelling," and added that “If the plaintiff’s amendment obviates the need to compel a non-party to disclose confidential financial information, we think it’s prudent to enter a brief stay of the order until the amendment request is resolved.” Judge Altman's order postpones discovery of Trump's financial information until the court determines whether amendment of the complaint is appropriate and what effect, if any, the revised claims will have on the scope of discovery. No deadline has been set at the moment for when Trump has to file the updated complaint. Judge Altman's order can be found here.

Hamburger Mary's Gets Flipped

By John R. Byrne

In an en banc decision, the 11th Circuit has upheld a Florida law that barred persons from knowingly admitting children to an "adult live performance.” What’s an "adult live performance," you ask? Well, that’s what the lawsuit was all about. Sure, the statute defined adult live performance, saying it was a live performance that satisfied the following four requirements:

• Requirement #1: depicts “nudity, sexual conduct, sexual excitement, or specific sexual activities [as defined], lewd conduct, or the lewd exposure of prosthetic or imitation genitals or breasts”;
• Requirement #2: “[p]redominantly appeals to a prurient, shameful, or morbid interest”;
• Requirement #3: “[i]s patently offensive to prevailing standards in the adult community of [Florida] as a whole with respect to what is suitable material or conduct for the age of the child present”; and
• Requirement #4:  “[t]aken as a whole, is without serious literary, artistic, political, or scientific value for the age of the child present.”

But, according to the plaintiff (restaurant Hamburger Mary’s), parts of that definition were the problem. According to the restaurant, which puts on drag shows,  the use of the word “lewd” and the phrase “age of the child present” made the law unconstitutionally overbroad and vague. A majority of the 11^th Circuit disagreed. It noted, among other things, that the Florida Supreme Court supplied a definition for “lewd” back in 1971 (in a case called Chesebrough) and that the “age of the child present” requirement wasn’t a problem because  age-variable standards are an established feature of obscenity law (plus, the Court had previously upheld an even broader statute that prohibited works “harmful to minors” as a class). 

Lots of dissenting judges here (five) and two dissenting opinions. Judge Rosenbaum said that the Court had embraced the “mess-around-and-find-out” First Amendment jurisprudence (“mess” replacing a different word in the more familiar saying). The idea there being that the the "age of the child present” is so vague that live performance venues will only know what the law means by putting on a performance and “finding out” what happens—will they be charged with a misdemeanor or not? Judge Abudu also dissented, saying that the Florida legislature enacted the law for an unlawful purpose (to target protected speech it didn’t like by passing a law that chills it).

You can read the whole thing here.