Judge Milton Hirsch shows how it's done

 I can't do this Order justice in a short blog post.  I recommend reading the whole thing here.  A quick summary on this incredible opinion:

The Hialeah Police Department ran a reverse sting. They didn't pose as buyers. They posed as sellers, used a paid informant to lure in would-be buyers, then seized the buyers' cash, kept 75 percent for the department, and paid the informant a 25 percent commission. Judge Hirsch's questioning exposed that the undercover detective handed out free cocaine to close deals. Over seven years, once or twice a month. By the judge's own math at the hearing, that's a quarter kilo of cocaine put onto the streets. "You don't know if it ended up in the hands of children?" the judge asked. "Correct," the detective said. The informant, meanwhile, had a rap sheet that included a decade in federal prison for cocaine trafficking, a conviction for conspiracy to export stolen cars to Colombia, and a stint as a fugitive. The detective who supervised him had never run a background check. "Not in depth," he testified. "Not at all," counsel pressed. "No, ma'am. No, ma'am."

Judge Hirsch found two independent due process violations. First, the police committed crimes to make their case. The legislature exempts law enforcement from drug laws for "bona fide law enforcement purposes," but no statute authorizes handing out free cocaine at an IHOP. No police chief, no governor, no president can authorize that. "If the constitutional promise of due process of law does not protect against such governmental outlawry," he wrote, "it is difficult to imagine what it protects against." Second, the informant was paid a 25 percent bounty on every dollar seized. The Florida Supreme Court struck down a 10 percent bounty arrangement in Glosson as a due process violation. This was two and a half times worse. On top of that, two jurors told the court they would hold it against Elysse if he didn't testify. His lawyers left them on the jury anyway. He didn't testify. They convicted him.

The conclusion is worth reading in full. Judge Hirsch opens with Thomas Erskine, one of the giants of the English bar: "Unjust prosecutions lead to the ruin of all governments. Whoever will look back to the history of the world in general, and of our own particular country, will be convinced that exactly as prosecutions have been cruel and oppressive, and maintained by inadequate and unrighteous evidence, in the same proportion, and by the same means, their authors have been destroyed instead of being supported by them." Then comes the line that will be quoted for years: "Jason Elysse may be a villain, but he is a villain possessed of due process rights." He invokes Hamlet — the State, like King Claudius, is "still possessed of those effects for which it violated the law in this case: the conviction and imprisonment of Jason Elysse. 'That cannot be.'" He closes with Justice Kogan's dissent in a Florida Supreme Court case: "Drugs injure some of us. The loss of liberty injures all." Motion granted.

Here's some of Judge Hirsch's questioning of the police officer (you really missed out if you didn't see Judge Hirsch in action as a lawyer):

BY THE COURT:

Now, you are in narcotics, you said, for seven years?

A:

Correct.

BY THE COURT:

Do I understand you – you tell me. During that seven-year period, you regularly – with some regularity engaged in reverse stings, is that correct?

A:

Correct.

BY THE COURT:

Throughout the seven-year period?

A:

Correct.

BY THE COURT:

And in connection with each of them, you were – as part of playing your role of a drug dealer, you – you gave sample cocaine away.

A:

Yes, I did, sir.

BY THE COURT:

Over the seven-year period, if we said once to twice a month, on average, is that a fair ballpark average?

A:

Yeah.

BY THE COURT:

You tell me.

A:

Yes, sir.

BY THE COURT:

Okay. So if we give out one to two grams of coke one to two times a month, say, eighteen grams – eighteen times would times one to two grams, so between a hundred and twenty-six and two hundred and fifty-two grams over a seven-year period. Would that be correct?

 

BY THE COURT:

So if we say two – a hundred and twenty-six to two hundred and fifty-two – two hundred and fifty would be a quarter of a kilo, correct?

A:

Yes.

BY THE COURT:

So in the seven years you were there, you – you may have given out a quarter of a kilo in cocaine?

A:

Fair – fair to say.

BY THE COURT:

Once you gave it away, there was no way to know what happened to it?

A:

Correct.

BY THE COURT:

You don’t know if the person you gave it to used it?

A:

Correct.

BY THE COURT:

You don’t know if he sold it?

A:

Correct.

BY THE COURT:

You don’t know if he gave it away?

A:

Correct.

BY THE COURT:

You don’t know if it ended up in the hands of children?

A:

Correct.

BY THE COURT:

You made no effort to find out?

A:

Correct.

BY THE COURT:

There was no way to find out?

A:

No, no way.

BY THE COURT:

It was just a risk you took as part of doing this business?

A:

Yes, sir.

Judge Scola's Next Chapter

By John R. Byrne

Judge Scola has only been retired a few months, and we already miss him. But I have some exciting news. The civil lawyers out there will soon be able to get some more Judge Scola in their lives. Beginning in May, the retired judge will be joining the law firm of Coffey Burlington with a focus on alternative dispute resolution. He's going to be a mediator. 

I think Judge Scola is going to be great at this. As a trial judge, he was exceedingly pragmatic and had a knack for cutting to the heart of an issue. Now, he can use those talents to knock some sense into civil lawyers and their clients and get deals done. 

He's not on the website yet but I'm sure he's going to be in high demand once he is. Keep him in mind for your future cases!

Trump v. The Wall Street Journal

By John R. Byrne

We’ve had a string of high-profile defamation cases in our district of late. Many had connections to President Trump. We had Trump v. ABC News and George Stephanopoulos (ultimately settled by the defendants for $15 M). And Dershowitz v. CNN over CNN’s coverage of Dershowitz’s Trump-related comments (dismissed by Judge Singhal with a cert petition now pending). Now we have Trump v. the Wall Street Journal. Or had. Judge Gayles dismissed Trump’s lawsuit yesterday. The lawsuit was over the journal’s story claiming that Trump sent Jeffrey Epstein a birthday message inside the outline of a nude woman with Mr. Trump's signature underneath. Trump dismissed the story as "FAKE" and filed a $20 billion lawsuit against the paper and others.

But the case doesn’t appear over just set. A rep for the President commented that the President "will follow Judge Gayles's ruling and guidance to refile this powerhouse lawsuit against the Wall Street Journal and all of the other Defendants."

Looks like our district will have yet another opportunity to apply the defamation standard set out in NY Times v. Sullivan. The bigger question is whether the long-standing precedent will soon go from endangered to extinct.

CBS news covers the story here and links to Judge Gayles’s order.

Meet Judge Artau Event

By John R. Byrne

Though he may not be for much longer, as of today, Judge Artau is still our newest federal judge. And Thursday, the Miami chapter of the Federal Bar Association hosted its "Meet Judge Artau" event. Judge Singhal asked the questions, and we got to learn a few things about the judge. Most notably for the trial lawyers out there, Judge Artau gives 30 minutes for voir dire! That’s 30 minutes for each side, to be clear. Judge Artau was also asked whether, during his lawyer days, he appeared before any judges that he admired or may want to emulate as a judge. He mentioned Judge Moreno, noting that he had tried a case in front of him and that his sense of humor helped keep things light.

We also got some bonus info about Judge Singhal. While attending Rice University, he hosted a classic rock radio show.

Special guests at the lunch included several state court judges (Judge Norma Lindsay of the Third DCA and Judge Mark Klingensmith of the Fourth DCA) and federal judges (Judge Gayles, Judge Huck, and Judge Wendy Berger from the Middle District of Florida).

Who is Satoshi Nakamoto?

The New York Times has a very interesting investigative report here on the long standing mystery -- who is the founder of bitcoin?  

I know the article is a little off-topic but it got me thinking about proof and what it means to prove something.  Read the piece and let me know whether you think the author proved beyond a reasonable doubt that Satoshi is Adam Back.  

Here's the lede:

One evening in the fall of 2024, my wife and I were sitting in traffic on the Long Island Expressway when, tired of listening to the jazz-funk station I often played on our drives, she switched to a podcast.

It was “Hard Fork,” the New York Times tech show, and the hosts were discussing a new HBO documentary claiming to have unmasked Bitcoin’s pseudonymous inventor, Satoshi Nakamoto.

I was instantly riveted. I had long considered the question of Satoshi’s true identity one of our age’s great enigmas and had poked at it before without success. Two years earlier, I had even spent several months researching a book on the subject. But I soon realized I was out of my depth and reluctantly gave up.

Hearing that someone else might have finally identified the shadowy figure who had revolutionized finance, spawned a $2.4 trillion industry and amassed one of the world’s biggest fortunes in one stroke of staggering genius aroused in me a mixture of admiration and envy. I couldn’t wait to watch the film. As soon as we got home that night, I logged in to the HBO Max app and pressed play.

In the end, I found the conclusion of “Money Electric: The Bitcoin Mystery” unconvincing: HBO singled out a Canadian software developer based on what seemed like very thin evidence. But as I watched what was an otherwise entertaining romp through the world of crypto, one scene caught my attention.

Adam Back, a British cryptographer and leading figure in the Bitcoin movement, sat on a park bench in Riga, Latvia, his shirt untucked under a brown coat. The filmmaker casually rattled off the names of several Satoshi suspects. At the mention of his own name, Mr. Back tensed up, strenuously denied he was Satoshi and asked that the conversation be kept off the record.

Having encountered my share of liars and developed something of an expertise in their tells, Mr. Back’s demeanor — his shifty eyes, his awkward chuckle, the jerky movement of his left hand — struck me as fishy. When the credits rolled up, I replayed the sequence several times on my TV.

Appellate Argument on Alligator Alcatraz Injunction

By Jordi C. Martínez-Cid

On Tuesday, an Eleventh Circuit panel consisting of Chief Judge Pryor, Judge Brasher, and Judge Abudu heard oral argument on the so-called “Alligator Alcatraz” case. Jesse Panuccio argued for the State of Florida, Adam Gustafson argued for the Federal Government, Paul Schwiep argued for the environmental groups, and Elliot Kula argued for the Miccosukee Tribe.

The panel focused on whether the federal government’s involvement with the immigrant detention facility was sufficient to trigger the National Environmental Policy Act (NEPA). The appeal challenges a preliminary injunction issued by Judge Williams in August that effectively required the temporary shutdown of the facility pending environmental review.

Mr. Panuccio and Mr. Gustafson emphasized that the detention site is state-owned, state-built, and state-controlled and thus the injunction incorrectly held that Florida was subject to NEPA and incorrectly limited state action. Mr. Schwiep countered that the facility exists solely to serve a federal immigration function and would not exist “but for” federal enforcement needs. In the appellees' view, Florida effectively outsourced federal immigration detention, making federal law applicable despite nominal state ownership or control. Mr. Kula emphasized the robust findings of fact made by Judge Williams which he argued are entitled to discretion.

It was an interesting issue and well argued. The full oral argument is available at this link. The case is Friends of the Everglades, Inc. v. Secretary of the United States, case number 25-12873.

Reprehensible Conduct

By John R. Byrne

Curious about what level of racial discrimination will give rise to a punitive damages award? Look no further than the Eleventh Circuit's recent decision in Faulk v. Dimerco Express USA Corp. The jury awarded Faulk $390,000 in compensatory damages and a whopping $3,000,000 in punitive damages for Dimerco withdrawing his job offer when Dimerco's president, Herbert Liou, discovered Faulk was black. But there was more to it than just the withdrawal of the offer.

• When Liou was interviewing for the president position with the company's founder, one of his proposals was “[h]iring Caucasian Sales & Marketing Manager/VP in LAX/NYC respectively";
• At trial, Liou testified that Dimerco needed “Caucasian” managers to “attract the Caucasian market";
• At trial, another Dimerco employee testified that Liou told her that "his preference was “Caucasian, young, white men” because “they were . . . work horses";
• Later, that same Dimerco employee emailed Liou, noting that “it’s discriminating to search for [a] candidate based on race." Liou's proposed response, which he actually sent to the company's director of compliance for review, was that Dimerco "is focusing on [the] Caucasian Market." The director's response to Liou (which proved somewhat prescient): "[i]f [you] put[] in writing that you want a specific race . . . , [b]oth you and the company are guilty of discrimination and if we ever get a legal complaint, these emails will result in a guilty verdict and large damage award.” 

Writing for the Court, Judge Pryor described Dimerco's conduct as "reprehensible" and affirmed the punitive damages award, reasoning that it wasn't constitutionally excessive.

The opinion is also worth a read for how the district judge (and later the Eleventh) handled inappropriate arguments made by Faulk's attorney during opening and closing. The district judge, Judge Michael Lawrence Brown out of Northern District of Georgia, reprimanded the attorney in real time but didn't issue a requested curative instruction or grant a new trial. The Eleventh Circuit held the trial judge acted within his discretion. That seems right. I feel like curative instructions can sometimes make matters worse in the "don't think of a pink elephant" sense. Opinion here. 

Yeney Hernandez sworn in, Guest Post by Lindsey Lazopoulos Friedman

Yeney Hernandez sworn in, Guest Post by Lindsey Lazopoulos Friedman

photo by Jon Kobrinski
 

Congratulations to Yeney Hernandez on being sworn in as the Southern District’s newest United States Magistrate! Chief Judge Altonaga swore Judge Hernandez in this morning, where Judge Hernandez wore a robe that,  as Judge Lauren Louis explained, has been passed down from Judge Seitz to each newly invested female Judge in the Southern District as a symbol of their embrace and support. 

 

Ed Stamm, Assistant U.S. Attorney and Acting Chief of Public Corruption, talked about Judge Hernandez’s many contributions to the U.S. Attorney’s Office, and how she did so with humility and integrity, the gold standard of public service. Judge Hernandez’s husband AUSA Jason Wu, spoke how about hard she works behind the scenes, how committed she is to justice, and how she always strove to show fairness to victims and defendants alike. 

 

I also spoke, and like the other speakers, couldn't help but notice how much Judge Hernandez embodies the American Dream. Judge Hernandez and her family escaped communist Cuba and spent months - including her 7th birthday - at Guantanamo Bay, making their way to the United States. Her father, formerly a doctor in Cuba, become a truck driver in Miami and her mom worked two jobs to make ends meet. Judge Hernandez fondly remembered her mother leaving chocolates (Ferrero Rocher) after coming home from her Saturday night shift for Judge Hernandez to find when she woke up. Judge Hernandez would go on to attend Duke (as a double major), followed by Yale Law School (where she served as an editor on two journals), followed by a clerkship on the Sixth Circuit and several years at a prestigious law firm before spending over ten years at the U.S. Attorney’s Office. 

 

Judge Hernandez also spoke, paying homage to her parents and recognizing and thanking them for their dedication and sacrifices. She also affirmed her commitment to the Constitution and Oath of Office, and thanked the community for their contribution to her own great achievement. She looks forward to hitting the ground running, and Judge Altonaga looks forward to it too!