11th Circuit now posts oral arguments on line

Big cheer for the 11th Circuit for posting same day oral arguments on its website. Apparently this has been happening for the past few weeks.

You have a right to remain silent.

After not speaking for a year, Gerald Petion pleaded guilty to a federal drug case. Paula McMahon has the details:

On Tuesday, after 12 months of politely but pointedly remaining totally silent and unresponsive in court, Petion resumed speaking to judges: He apparently decided it was in his best interest to accept a plea agreement offer from the prosecution.

“Guilty,” Petion said when U.S. District Judge Robin Rosenberg asked him how he wanted to plead to two federal drug-trafficking and weapons charges.

Prosecutors said they will recommend 20 years in federal prison when he is sentenced in August, but the final decision on his punishment lies with the judge. The maximum possible penalty is life in prison.

***
He remained imprisoned the whole time and only succeeded in delaying progress in his case for 12 months.

Earlier this month, Petion finally resumed speaking to his attorney after two in-depth mental health evaluations showed that there was nothing physically or mentally wrong with Petion and that he was legally competent for the case to proceed. The experts said he was faking mental illness.

After he was determined to be mentally competent, prosecutors made a plea offer and said they were considering filing a more serious charge, with a harsher punishment, if he planned to go to trial.

Meantime, we still have no U.S. Attorney. As far as I know, all of the finalists are still being considered. I imagine that we will have our nominee by the end of the month. It will be interesting to see if the nominee will accept the position and work for a Trump/Sessions administration.

Dismissed juror in Corrine Brown case was holding out for acquittal

When is it appropriate to dismiss a "holdout" juror? Representative Corrine Brown, who was convicted late last week, will argue that the judge should not have dismissed a juror holding out for innocence:

A juror dismissed from former U.S. Rep. Corrine Brown’s fraud trial told other jurors “the Holy Spirit” said Brown was innocent as the jury deliberated, according to a transcript the trial judge unsealed after a hearing Monday.
U.S. District Judge Timothy Corrigan’s decision to remove that juror will evidently become part of Brown’s effort to challenge her conviction last week on 18 out of 22 fraud and tax charges that could lead to years of imprisonment.
Although he hadn’t requested one Monday, Brown’s attorney, James W. Smith III, told reporters last week he planned to seek a new trial.
Corrigan acknowledged disagreement over the juror’s dismissal during a hearing that touched on a range of subjects involving the now-discharged jury.
“It is obviously a matter of contention in this case as to whether the court acted correctly,” Corrigan said.
“I thought it was the right decision, but I know you have rights and I want you to be able to take advantage of those,” the judge told Smith before denying a pair of oral motions that would have raised the possibility of attorneys talking with some jurors about their verdict.

"A foolish consistency is the hobgoblin of little minds, adored by little statesmen." --Ralph Waldo Emerson.

AG Sessions is being criticized by both sides of the aisle for his new sentencing guidance, which requires prosecutors to seek much harsher sentences than under the previous administration.  The memorandum says:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor.  The directives I am setting forth below are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

It's hard to believe that we are going backwards and this is the criminal justice system that we will now be operating in.  Which judges will stand up to the executive?  Which judges will write sentencing orders explaining why prosecutors are asking for sentences that don't comport with 3553? Which judges will say enough is enough?

The boat cases in SDFLA seem to be a good opportunity for a judge to say something about the absurdity of these sentences. How much time should a fisherman get for being paid $2,000 to be a crewman on a drug boat that isn't even headed to the United States?  The min/man is 10 years, and our prosecutors are seeking those sentences.  From the Miami Herald:

“All three defendants admitted their involvement in the drug-smuggling conspiracy and that they knew they were transporting drugs on board the vessel,” the complaint says. “All three defendants also admitted that the vessel was going to Mexico and all were paid between $2,000 and $3,500 to transport the drugs.”
...
But Marc David Seitles, Bustos Pereira’s attorney, indicated that his client is a victim of the enforcement system.
“Yet another impoverished fisherman with a second grade education facing a minimum of 10 years in federal prison,” Seitles said in an email message. “This is fighting the war on drugs? Laughable.”
Many Latin American defendants in similar prior cases have told U.S. enforcement officials that they are fishermen or farmers who have been coerced or threatened by drug traffickers into transporting cocaine on boats.

11th Circuit says no to death by firing squad

Anthony Boyd, sentenced to death, asked for his punishment to be carried out by firing squad or hanging.  The 11th Circuit, per Judge Marcus, said no. He will now be executed by lethal injection.  From the AJC:

Boyd had challenged Alabama’s new lethal injection protocol, alleging it violates his Eighth Amendment right to be free from cruel and unusual punishment.

Instead, he noted, legislatures in Utah and Oklahoma have approved the firing squad, which has a good track record of “speed and certainty for the condemned.” In the alternative, hanging is an option that has been approved by lawmakers in Delaware, New Hampshire and Washington. And Alabama is “fully capable” of approving those execution methods as well, the appeal said.

The 11th U.S. Circuit Court of Appeals, in a ruling written by Judge Stanley Marcus, said Alabama gives condemned prisoners the choice between two methods of execution: lethal injection and electrocution.

Also, Marcus wrote, the law is clear. Inmates challenging a method of execution must prove there is an alternative method of execution “that is feasible, readily implemented and in fact significantly reduces the risk of pain posed by the state’s planned method of execution,” he said.
“The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution,” Marcus wrote.

“But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses and unconstitutional risk of pain,” he noted. “Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad.”

Marcus added, “Notably, Boyd did not propose an alternative drug cocktail that the state could use in his execution.”

Judge Wilson concurred in the result only but wrote separately to explain his disagreement with binding law.

In other news, tomorrow is the District's Bench and Bar conference. All of the judges will be forced to mingle with the hoi polloi. Good times, good times...

Ted Cruz v. Sally Yates

Sally Yates wins:

Victory for BBX, Alan Levan and Gene Stearns

Trial #2 goes to Bank Atlantic, Alan Levan and their lawyer Gene Stearns. A really big win for them over the SEC. From the DBR:

A federal jury on Monday ruled in Fort Lauderdale banker Alan Levan's favor on all claims filed by the Securities and Exchange Commission.

The SEC alleged Levan had misled investors about the health of certain real estate loans in Fort Lauderdale-based BankAtlantic's portfolio leading into the recession. The agency also claimed Levan's company BBX Capital Corp., which sold the bank in 2012, failed to properly account for loans in public disclosures.

It was the second SEC trial for BBX and Levan on the same claims. The first trial in 2014 ended with some jury findings against the defendants, a temporary ban on Levan running a public company and millions of dollars in fines. The appellate court overturned some pretrial rulings and sent the case back for another six-week trial in Miami before U.S. District Judge Darrin Gayles.

Levan and BBX also settled an earlier case brought by shareholders.

"I am pleased this regrettable nine-year ordeal is finally over and has ended in complete exoneration," Levan said in a statement. "This frivolous action by the SEC was clearly motivated either by incompetence or by malicious self-interest so the agency could say it did something to somebody other than watch the banking system collapse under its nose. I am ready to move on and build on the considerable success we have enjoyed at BBX Capital, which has prospered despite the unfair and unwarranted burden imposed on us by this SEC witch hunt."

Monday News & Notes

1. Trump is going to nominate Kevin Newsom to the 11th Circuit this week. Newsom, a law school classmate of mine, is well-qualified (former Alabama SG, former Souter clerk). He is one of nine nominations set to occur this week, via NY Times.

2. Prosecutors have plagiarized a blog post in amicus brief on death penalty case (via Jacksonville Times). Doh!

The Florida Prosecuting Attorneys Association apparently copied a defense attorney’s blog post in a critical brief dealing with whether prosecutors have the right to reject the death penalty.

The brief signed by Buddy Jacobs, an attorney and the longtime lobbyist for the prosecutors association, argued that an Orlando prosecutor deserved to have first-degree murder cases taken away from her after she said she wouldn’t seek the death penalty. The brief was signed by Jacobs and two other attorneys in his Fernandina Beach law firm.

Part of that brief is exactly copied from Richard Hornsby, an Orlando defense attorney. Hornsby posted last month on his blog why he thought Gov. Rick Scott was justified in his decision to re-assign capital murder cases away from State Attorney Aramis Ayala.

3. The Corrine Brown trial is set to go to closing today, via Florida Times-Union. That's up in Jacksonville. Apparently she cried on the witness stand on Friday. Any thoughts on whether she will walk?