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. 

Mr. Impeachment

By David Oscar Markus

Florida Attorney General James Uthmeier, who has called for the impeachment of many really good judges, is now asking Congress to impeach Judge Nancy Abudu of the Eleventh Circuit.

Sigh.

If it wasn't so outrageous, it would be comical.

His reason? Before she took the bench, she worked at the Southern Poverty Law Center. 

The Constitution sets a high bar for removing a judge. Treason, bribery, high crimes and misdemeanors. In more than two centuries, the House has impeached only fifteen federal judges. The ones actually removed committed real crimes. Bribery. Perjury. Tax fraud. Not "used to work at a place the government now doesn't like."

Judges come from somewhere. Prosecutors. Public defenders. Big firms. Legal aid. Civil rights groups. If a lawyer's prior employer becomes grounds for impeachment, no judge is safe. Today it's the SPLC. Tomorrow it's a firm that represented a company under investigation, or a prosecutor's office with a bad case, or a defender who represented someone awful.

And Abudu isn't the only target. Uthmeier has called for impeaching some of our best judges. Most recently, Miguel de la O. Judges with sterling reputations, dragged into this because someone didn't like a ruling. Absurd.

This is becoming normal, and that's the problem. A judge rules the wrong way, or has the wrong resume, and someone calls for impeachment. It's a threat, and it's meant to be one. Rule against us and we'll come for your job.

Lawyers know better, and lawyers have to say so. An independent judiciary is the thing standing between our clients and the government. We defend it whether or not we agree with a given judge. The alternative is judges who decide cases with one eye on Congress.

Judge Abudu is a wonderful judge -- thoughtful, hard-working, liked by her colleagues.  But she comes from the other side of the aisle of Mr. Impeachment, so he is on the attack.  

Please don't say silent about this. The bar should be loud in its defense of our judiciary.

Our system has lost its way

By David Oscar Markus

Imagine the World Cup final goes to penalty kicks. The referee announces that one team gets five kicks and the other gets four for no good reason. 

The four-kick team loses. On review, the officials agree the referee got it wrong. But the result stands, they explain, because the winning team was better anyway. The advantage didn't matter. Then one of the three officials on the review panel writes separately to say there was no error at all. The losing team got to take some kicks. That's all the rules require.

No league in the world could survive that. But apparently it's good enough for our criminal justice system.

On Friday, the Eleventh Circuit decided United States v. Hernandez, No. 24-10047 (11th Cir. July 31, 2026). Elizabeth Hernandez, a nurse practitioner from Homestead, went to trial before Judge K. Michael Moore on charges that she defrauded Medicare of $111 million. The trial lasted six days. 

The court gave the government 40 minutes and the defense 30. When defense counsel hit her 30 minutes, the court cut her off mid-argument. She asked for ten more. Denied. After the government's rebuttal, she objected again, explaining that 30 minutes hadn't been enough to cover the false statement counts, the loss amount, or good faith. 

The panel, in an opinion by Judge Brasher joined by Judge Jill Pryor, agreed this was error. The government carries the burden in every criminal case, the court explained, so that "cannot justify dividing argument time unequally as between the parties." The district court "abused its discretion by applying this unusual presumption of unequal treatment."

But as is often the case, the court found harmless error: "It is inconceivable that granting Hernandez ten extra minutes could have overridden the extensive trial evidence of her guilt."

In other words, the winning team was better anyway.

And believe it or not, that was the defense-friendly part of the opinion. 

Judge Luck concurred in the judgment only, because he saw no error in the first place. In his view, a defendant is only entitled to an opportunity to give a closing argument, and enough time to make her legally tenable arguments. In his words: "That's it."  So one of the three judges on this panel wouldn't even call five kicks against four a problem.

There's a lot more to this opinion that will get your blood boiling. Good faith was one of the defenses Hernandez said she ran out of time to argue. When the court then read the instructions aloud, it told the jury that "[a] defendant is required to prove good faith." 

The law, of course, is exactly the opposite.

The panel held that error wasn't reversible because the written instructions were correct. 

Hernandez got 20 years.  Is it too much to ask for a defendant to get a fair fight before getting decades in prison?

Farewell to Judge Matthewman

By John R. Byrne

It was a heartfelt--and very funny--sendoff for Magistrate Judge William Matthewman yesterday at the Wilkie D. Courthouse. Magistrate Judge McCabe served as master of ceremonies, and the other speakers included former Magistrate Judge O’Sullivan, Magistrate Judge Reinhart, and Judge Williams.

At the outset, Judge McCabe unveiled an incredible throwback photograph of a young (and mustachioed) Judge Matthewman from his days as a K-9 officer with the City of Miami. Yes, his dog, Fuzz, was pictured too. I wish I had snapped a photo of it. As Judge Williams observed, Judge Matthewman looked ready to audition for CHiPs.

Although the speeches prompted plenty of raucous laughter, they also made clear how much respect and admiration Judge Matthewman’s colleagues have for him. And, although I probably should have known this already, I learned that Judge Matthewman was an accomplished criminal defense lawyer before taking the bench, including trying a high-profile death-penalty case before Judge Ungaro.

In his own remarks, Judge Matthewman cracked a few jokes, of course. But he also shared some words of wisdom that judges and lawyers alike could take to heart. For judges, he recalled what Judge Cohn told him when he first took the bench: “This job isn’t that hard. Listen carefully to the arguments and just be reasonable!” And for lawyers, this: Be concise. In your openings, your examinations, and your closings. 

And with that, I’ll end this blog post.

Girl you know it's true

By David Oscar Markus 

Do jurors know who Milli Vanilli is? A lawyer for a Goldman Sachs banker is betting on it as he invoked the lip synching group from the 1980s in his opening statement.

From Law360:

Jurors heard opening statements in the trial of former Goldman executive director Asante Kwaku Berko, 52, who's facing Foreign Corrupt Practices Act and money laundering charges stemming from an allegedly corrupt deal for a Turkish power producer to make hundreds of millions of dollars by supplying much-needed electricity to the West African nation while taking kickbacks for himself.

Goldman client Turkish Aksa Enerji Uretim AS was looking for an edge to secure a contract with the Ghanaian government in 2015 and 2016 to build and operate an electrical plant, prosecutors say. To make it happen, Berko arranged for the power producer to funnel corrupt payments to state officials "up and down the chain."

While prosecutors say they have strong evidence, such as Berko's "damning admission" to bribery on tape, and purported email correspondence about the bribes, after jurors heard the government's openings Tuesday, defense attorney Robert Boone of WilmerHale told the jury that just like the fact that Milli Vanilli stars Fab Morvan and Rob Pilatus did not provide the actual vocals for their songs, the government's case is devoid of proof that Berko committed any crime.

Boone told the jury "there were signs if you looked for it," in reference to the lipsyncing by the R&B-inspired German pop sensation that was credited with singing hits like "Girl You Know It's True" and "Baby Don't Forget My Number," namely, embarrassing technical snafus at performances and the heavy accents of Morvan and Pilatus that were conspicuously absent from their songs.

Despite the flashy presentation, Boone said that, like Milli Vanilli, "what you just heard from the government was an incredible story, but it wasn't true."  

I like creative lawyering and taking risks, but wondering if the jury will get it.

Tate Brothers Facing Extradition From Miami

By Jordi C. Martínez-Cid

I'm old, or at least too old to know much about Andrew and Tristan Tate. The internet says that they are British-American social media influencers and former kickboxers who built a large online following through content focused on wealth, entrepreneurship, fitness, and self-described masculinity. Critics (and maybe themselves?) describe them as misogynists. Having been filmed signing along to Kanye's Heil Hitler at Vendôme in Miami Beach along with other "manosphere" influencers does not help their image. That alone was not enough to hit the blog, but the cocktail of weird now includes some local legal trouble. The brothers were arrested here awaiting extradition to the United Kingdom for rape, assault, human trafficking, and related charges.

The cases are before Magistrate Judge Louis and have been assigned numbers 1:26-mj-03529 and 03260. Abbbie Waxman, presumably with the help of the State Department, for the United States. The brothers are represented by a team of lawyers, including Howard Srebnick, Steve Binhak, and Thomas McBride who is known for operating the January 6th Legal Fund. The brothers are seeking release on bond, but extradition proceedings are sui generis, odd proceedings where bond is governed by a case decided in 1903 called Wright v. Henkel. The brothers' lawyers will need to argue that "special circumstances" apply. If you want bond, you are better off committing a crime in the United States. Complaint against Andrew, the seemingly more famous brother can be found here. Should be an interesting case and well covered.

The "NED" and the "BOB"

By John R. Byrne

Since 2010, the South Florida Chapter of the Federal Bar Association has presented the Edward B. Davis Award for Service to the Federal Bench and Bar. The award came to be known informally as the “NED,” after Judge Davis’s nickname. Several of our currently serving federal judges have received the award, and this year Judge Gayles will join their ranks.

More recently, in 2024, the Chapter created an additional award to recognize lawyers who have gone above and beyond in their service to both the Chapter and the broader federal legal community. Until this year, however, the award did not have a name. It has now been formally christened the Bob Josefsberg Distinguished Service Award. So, we now have both a “NED” and a “BOB.” My understanding is that Judge Davis and Bob Josefsberg, in addition to being universally beloved, were close friends. Oh, and this year’s “BOB” recipient is none other than the blog proprietor himself, David Markus.

I hope you can join us in celebrating these deserving recipients at this year’s FBA Installation and Awards Gala. The event will take place on Saturday, October 3, at the Frost Museum of Science. Individual tickets are not yet on sale, but I will let you know when they become available.

Latest Warning about AI

 By John Byrne

Let this be your daily reminder not to use fake cases in your briefs. The Eleventh Circuit devoted an entire section of its recent opinion in Akerlund et al. v. Atlas Air, Inc. to lambasting a lawyer for citing hallucinated cases in his brief even after he was warned. Opening that section by noting that it had “saved the worst for last,” the Court got into granular detail about the lawyer’s misuse of AI. Judge Grant wrote the opinion, joined by Judge Rosenbaum and Judge Kidd. The Court wrote: 

"We expect that when lawyers submit briefs, they give us their best view of what the law is, and how that law supports their clients. We read those briefs carefully—not just because they are the product of counsel’s time, effort, and skill, but because they help us as we try to reach the right answer. All that is lost if a lawyer decides that it is not worthwhile to do the work to persuade us—if he is willing to sign his name on whatever a machine churns out without so much as checking it for accuracy. We cannot do our job the same way unless lawyers do theirs.” You can read the opinion here. 

https://www.scribd.com/document/1064918283/Atlas-Air