Monday morning (UPDATED)

UPDATE -- the Court decided Taylor.  Not such a biggie after all: "The prosecution in a Hobbs Act robbery case satisfies the Act’scommerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds."

Here we go:

1.  The Tony Villegas murder trial starts today.  From NBC:

Prosecutors and investigators do not believe that the murder [of Rothstein partner Melissa Britt Lews] had anything to do with the $1.6 billion scheme, but that [Tony] Villegas blamed Lewis for the breakup of his marriage.
Lewis was found dead in a canal near Plantation after her SUV was found nearby. Investigators said a struggle took place inside her garage, using DNA and pings from her cell phone to allegedly connect Villegas to the crime.Villegas was declared incompetent to stand trial in 2010 and avoided a trial until he was cleared by the state.
Debra Villegas, who has been released following a federal prison term for her role in one of the largest Ponzi schemes, is expected to testify. It is unknown if Rothstein, who is currently serving a 50 year term, will be called.

2.  The Supreme Court Term is coming to an end.  SCOTUSblog has all of your updates for the 13 remaining cases.  There will be some announced today.  Here's one of the criminal cases left that may be a biggie:

Taylor v. United States (argued February 23, 2016).  The petitioner in this case, David Taylor, was part of a Virginia gang that robbed drug dealers.  The two robberies that led to this case, however, did not yield any drugs – only cellphones, jewelry, and a small amount of money.  Taylor was indicted on federal charges that he had violated the Hobbs Act, which punishes robberies and extortion but applies only when the defendant “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.”  The question before the Court is whether the federal government is required to prove facts to show that the defendant’s conduct actually affects commerce.

3.  Apparently Clarence Thomas is mulling retirement:

 Justice Clarence Thomas, a reliable conservative vote on the Supreme Court, is mulling retirement after the presidential election, according to court watchers.Thomas, appointed by former President George H.W. Bush and approved by the Senate after a bitter confirmation, has been considering retirement for a while and never planned to stay until he died, they said. He likes to spend summers in his RV with his wife.

Get those Johnson motions in!

If you don't know what I'm talking about, then you probably don't have a client who has been enhanced under the Armed Career Criminal Act or the Career Offender guidelines.  Many of these clients may get their sentences reduced -- by a lot -- because of Johnson v. United States, 135 S. Ct. 2551 (2015).  But the one-year limitation period to file your Johnson motion expires a week from today, June 24, 2016.*

Here is Judge Martin's recent, helpful concurrence on the issue:

I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause.  I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson.  Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence.  As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson.  See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).
Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson.  I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications.  I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory).  I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.

*Some, including Judge Martin, think it expires June 26.  But to be safe, file it next Friday.

In other news, the "terror" trial of Harlem Suarez is running into some snags.  From the Miami Herald:

Attorneys for the Key West terror suspect charged with trying to buy a bomb he planned to set off in South Florida have asked a judge to let them leave the case, saying their client refuses to take their advice as he approaches trial.
They also want the trial of Harlem Suarez, 24, who is accused of being an Islamic State sympathizer, postponed due to the flood of news coverage in the aftermath of the weekend Orlando nightclub massacre in which the gunman pledged allegiance to ISIL. Forty-nine people died, the worst mass shooting in U.S. history.
Suarez, who faces life in prison if convicted of planning to detonate a weapon of mass destruction at a beach filled with people, is scheduled to stand trial July 11.
“A continuance is in the interests of justice until such time as the heated reporting on the Orlando incident has subsided,” attorneys Richard Della Fera and Joshua Entin of Fort Lauderdale wrote in a motion filed Tuesday at U.S. District Court in Key West .
At the same time, the lawyers have asked to withdraw from the case, saying Suarez won’t listen to an “extreme extent.”
“Counsel believes that the attorney-client relationship with defendant has deteriorated to the point that it is best that defendant have new counsel,” the lawyers wrote in a motion filed Friday in U.S. District Court.
They asked Judge Jose Martinez for a hearing at which they can make their case that Suarez needs a new legal team. On Monday, Martinez referred the motions to Magistrate Judge Lurana Snow. Prosecutors hadn’t responded as of midday Tuesday.
In another filing by Della Fera and Entin, they ask the court to not let testify at trial Daniel Byman, who the government calls an expert on terrorism and the Islamic State known as ISIL, saying it flies in the face of fairness for Suarez.
“Clearly, the very mention of terrorism and the Islamic State invokes fear and worry in hearts and minds of every American citizen,” Suarez’s attorneys wrote. “It will be difficult enough for defendant to get a fair trial in the present climate where the media’s constant reporting and commentary on terrorism and terrorist attacks is omnipresent.”

Read more here: http://www.miamiherald.com/news/local/community/florida-keys/article84094017.html#storylink=cpy

Read more here: http://www.miamiherald.com/news/local/community/florida-keys/article84094017.html#storylink=cpy

Jack Utsick pleads guilty

There was a lot of trial talk at the beginning of this case, but now we are headed to sentencing.  From the Miami Herald:

On the eve of trial, a once-powerful Miami Beach concert promoter pleaded guilty Friday to ripping off a single investor — though his federal plea deal still leaves him vulnerable to prison for the rest of his life.
Jack Utsick, who produced tours for Fleetwood Mac, Michael Jackson and other superstars, faces up to 17 years in prison and must repay more than $169 million to thousands of his investors, many of whom were retired commercial airline pilots like him.
But Utsick’s defense attorneys said their 73-year-old client is ailing and broke, factors that could help him obtain lighter punishment at his sentencing Aug. 23 before U.S. District Judge Cecilia Altonaga.
“We will be asking for a substantially lower sentence,” said Washington, D.C., lawyer Eric Lisann, who is working on the defense with Miami attorney David Weinstein.

Meantime, there is a lot of debate about whether the Orlando shooter's wife committed a crime.  From the Sun-Sentinel:

The wife of Orlando massacre shooter Omar Mateen, Noor Zahi Salman, is talking to the FBI, a law enforcement official said, speaking on condition of anonymity to discuss the investigation.
Among other things, investigators are looking at whether Salman helped Mateen plan or scout out the rampage at the Orlando nightclub, or knew about his plans.
Mateen visited a number of Disney properties since April, and was most recently spotted early this month in Disney Springs, an outdoor shopping and entertainment complex inWalt Disney World, according to a U.S. law enforcement official briefed on the investigation.
It's possible that Mateen's visit overlapped with Gay Days Orlando, which went from May 31 to June 6 this year. The annual event brings thousands of LGBT individuals and families to Central Florida.
 The organizers of Gay Days arrange some ticket packages at Disney parks during the annual event and designate parks to attend on certain days.Another U.S. official said that information provided to the FBI by Disney made it clear that Mateen was not simply acting as a tourist during a visit to Walt Disney World two or three months ago.
***
Mateen's wife, Salman, has told FBI agents that she drove with him to the Pulse nightclub on at least one occasion before Sunday's shooting, and that she accompanied him to shop at a firearms dealer.
Mateen bought a Glock handgun and an AR-15-type semiautomatic rifle during two separate visits this month to the St. Lucie Shooting Center, several miles from PGA Village, a gated community where he worked as a security guard.
The FBI is investigating whether Salman also had knowledge of his plan to attack and kill patrons at the gay nightclub.
If Salman knew of her husband's intent to commit terrorist acts and didn't report it to law enforcement, she could face criminal charges. But a federal law enforcement official said the Justice Department is in no rush to file charges because no evidence has emerged to suggest the gunman had accomplices, and there is no imminent threat of another attack.
Mateen was the target of a 10-month FBI investigation in 2013 and 2014, but the case was closed when a confidential informant, surveillance and eavesdropping did not turn up evidence of illegal activity. At that point Mateen's name was taken off the FBI Terrorist Screening Center's watchlist.
Had his name been in the watchlist when he bought the firearms he used in the shooting, an FBI agent working the case would have been notified.
Schiff said he told Comey during Tuesday's briefing that the FBI should change its procedure to ensure that an agent is notified when a former terrorism suspect buys a gun.
If the FBI can't make that change on its own, Schiff said, he will consider drafting legislation to do it.

Read more here: http://www.miamiherald.com/news/local/crime/article83118357.html#storylink=cpy

Love is love is love

What a nice message after the tragedy yesterday.

Some quick news:

1) Congrats to AUSA Amit Argawal for being named Florida S.G. He is quite the rising star. I had the pleasure of arguing some cases against Amit (including the cell site data case en banc) and he is a gentleman.

2) The CJA conference was this weekend in Naples. Judges Moore, Cooke Scola, Matthewman, and Hunt were there. Plus there was a wonderful talk by Judge Beverly Martin and FPD Michael Caruso. It was a really good conference.

3) In last week's Sanchez-Valle opinion (finding that Puerto Rico could not prosecute someone after the feds had already done so), Justice Ginsburg (joined by Thomas) wrote a concurrence stating that the whole dual sovereignty doctrine should be re-examined. This was the position that FACDL-Miami took in its amicus brief (the only amici to take such a position). Big ups to Howard Srebnick, Terry Reed, Teresa Enriquez and Margot Moss for pushing the issue.

4) Some more details about the text messaging dust-up before Judge Bloom last week. But still trying to find out what the actual texts were... From Paula M's story:

Authorities accused her of improperly sending text messages to the federal agent who worked under cover on her case. The messages, in Mandarin Chinese, were not deemed threatening but were sent during an overnight break in the agent's trial testimony last week, records show.

Pro tip for defendants -- do not text the undercover agent while he is testifying

Ooof.  That happened in Judge Bloom's courtroom this week, according to the Sun-Sentinel.  The defendant was then taken into custody:

South Florida jury convicted a California woman on Thursday of conspiring to send a $50 million missile-firing drone and jet fighter engines to China via Broward County.Wenxia Man, aka Wency, 45, of San Diego, was found guilty of conspiring to export military weapons, equipment and technical data to the People's Republic of China.
***
Authorities accused her of improperly sending text messages, in Chinese, to the federal agent who worked undercover on her case during a break in his testimony in her trial. The agent, from U.S. Immigration and Customs Enforcement/Homeland Security Investigations, reported the improper contact and U.S. District Judge Beth Bloom order Man taken into custody, according to court records.

Does anyone know what the text said?  Please email me if you have any further info! 

Annual CJA conference in Naples

It's that time of year again, when all of the CJA lawyers take the Alligator Alley adventure.  Hopefully there will be none of this during the drive.  Instead, lawyers will get the latest Johnson updates, schmooze with some judges, and get to bond.

While this is going on, Jose Baez will be preparing for the Aaron Hernandez case.

Fun times...

Evidentiary hearing today in Spy-gate (Updated)

UPDATE -- so the courtroom was packed this afternoon.  Every seat was taken.  (When that happens, shouldn't the security people move the interns/clerks to the jury box to make more room for the public.)  It was mostly prosecutors and interns/clerks in the audience.  

Only one witness was called today, Rossana Arteaga-Gomez, the lawyer for Mr. Schapiro who was in the warehouse with the documents.  After about 2 hours, the rest of the testimony was taken in camera without the line prosecutor so he wouldn't learn any of the work-product material that the agent is alleged to have learned from the copies provided to her.  

Hearing continued till Monday.  Not much to report on today.

I've gotten some push back from my prosecution friends for calling it Spy-gate (the Patriots probably didn't like it either).  What about Copy-gate instead?

Original Post:

We need a better name for the case (U.S. v. Schapiro)...

Background here on the defense's claims that the government has been spying on its work product for the past 10 years.  Judge Cooke will hear evidence this afternoon

In the meantime, the defense filed its reply last night.

Reply in Support of Sanctions

Rubio officially blocks Mary Barzee Flores

The Tampa Bay Times has this:

“Senator Rubio recently returned the blue slip for three judges to fill other vacancies throughout Florida, but he will not return the blue slip on Ms. Barzee Flores," spokeswoman Olivia Perez-Cubas said.
"Florida has very busy federal courts and Senator Rubio would like to see judicial vacancies filled promptly with consensus picks who can be swiftly confirmed in a period of divided government. During the Obama administration, there has been an unfortunate trend toward the judiciary playing a more active role in policy-making, which is why Senator Rubio would rather see a judgeship remain vacant than to fill it with the wrong person for a lifetime."

The Miami Herald did a longer story, with quotes from people in the community backing Mary:

 Barzee Flores’ supporters in the legal community — including Miami-Dade, state and national police organizations, as well as prominent former state and federal prosecutors on both sides of the political spectrum — say they are baffled by Rubio’s decision to block her confirmation hearing before the Senate Judiciary Committee.They noted that his reasoning, based on his office’s statement, was contradictory, evasive and reflective of the political divisiveness in the GOP-controlled Senate, which votes on the president’s judicial appointments.
“It’s unfortunate that Mary has apparently fallen victim to the extreme political partisanship that is plaguing federal judicial nominations,” said former U.S. Attorney Marcos Jimenez, who was appointed by President George W. Bush.
Jimenez, who had served on Bush’s legal team in Florida’s 2000 presidential election dispute with Democrat Al Gore, said Barzee Flores is “extremely qualified and would make a great judge.”
Last year, Jimenez joined four other former U.S. attorneys in Miami — Roberto Martinez, Thomas Scott, Guy Lewis and Jeffrey Sloman — in a letter supporting her confirmation to the Senate Judiciary Committee chairman, Sen. Charles Grassley, and a ranking member, Sen. Patrick Leahy.
“We know how important it is to have smart, fair, hard-working judges on the federal bench,” they wrote in March 2015. “Mary fits the bill.”
Their letter noted that three former U.S. attorneys in Miami who serve on Florida’s Federal Judicial Nominating Commission — Alex Acosta, Kendall Coffey and Dexter Lehtinen — recommended her to President Obama.

Really sucks.  I don't really get it either -- why back the person only to withhold the blue slip?

I guess the upside it that If HRC wins, Mary can be renominated.  And since Rubio's seat will also change, I wouldn't say this is over just yet.

Read more here: http://www.miamiherald.com/news/politics-government/article81786967.html#storylink=cpy

Has the government been using its copy service to spy on defense work product for the past 10 years?

Those are the allegations in this motion to dismiss filed by Howard Srebnick and Rossana Arteaga-Gomez in U.S. v. Schapiro before Judge Cooke. 

Those who practice in this District know that in large fraud cases, the government stores its documents at a facility in Miramar.  If you want to see or copy the documents, you need to go there.  The Schapiro defense alleges that it flagged documents for copying from the warehouse.  The copy service scanned those documents and gave the defense a CD, which included the documents, titles the defense assigned to those documents, and post-it notes on the documents.  Unbeknownst to the defense, the copy service would also give that CD with this material to government agents.  And the copy service has been doing this for 10 years.  From the motion:

Mr. Montero [the copy service guy] then stated that he had been providing to the U.S. Attorney’s Office for the past 10 years duplicate copies of the discovery documents selected by defense counsel in other cases. On that day, Mr. Montero forwarded to Ms. Arteaga-Gomez his April 21, 2016 email to Cori Weiss [the government paralegal] (discussed above). In the forwarded email, Mr. Montero writes:

Here is the email I sent the FBI and this practice has been one that has been going on since 2006 that both Xpediacopy my old company and Imaging Universe have provided the U.S.D.O.J. in the majority of the cases where the government was not paying for the discovery services or were paying for half of the services.

To the prosecutor's credit, he informed the defense of this when he found out about in this case.  But query why it took 10 years for any prosecutor or agent to speak up. 

Judge Cooke remarked at the initial status conference on the motion that if true, the conduct was "repulsive."  In fact, she issued an order asking the parties to address the following issue: "What remedies, if any, are available to the court were the court to find that the described conduct in Defendant Shapiro’s motion is a systemic, consistent and/or pervasive practice of or on behalf of the United States Attorney’s Office?"

The Government filed a 49-page response here in which it claims, no harm no foul and that this isn't really work-product.  It also makes the surprising claim that the defense has waived any claim because it either knew or should have known about this procedure.  Wow.

An evidentiary hearing has been scheduled for next week.  This is worth following.

Kudos to Dan Christensen from Broward Bulldog as the first to report on the story here, which will soon be national news.  From the intro:

In a stunning twist in a long-running Medicare fraud case, both the Miami U.S. Attorney’s office and the FBI stand accused of spying on a defendant’s lawyer by illegally and secretly obtaining copies of confidential defense documents.
Court papers filed last week by attorneys for Dr. Salo Schapiro contend the secret practice was not the action of “just one rogue agent or prosecutor.” Rather, it was apparently an “office-wide policy” of both the U.S. Attorney’s Office and the FBI that’s gone on for “at least 10 years.”
The unwritten policy involves “surreptitiously copying defense counsel’s work product through the government-contracted copy service that the government requires defense counsel to use to obtain the discovery documents’’ needed to properly prepare for trial, according to court papers that seek either the dismissal of Schapiro’s indictment or the disqualification of the entire prosecution team.

End of school

It's that time of year -- recitals, graduations, pool parties, etc.

And of course, the end of Term opinions by the Court.  But the 8 member Court is making it tough.  Slate says the Court is bored out of its mind:

 So on the bridge of the Starship Enterprise when Captain Kirk has been forced to downgrade life support to minimum. Lights seem to flicker gently. Dazed reporters drift down the halls like tumbleweeds. On Tuesday, Justice Samuel Alito didn’t even show up for opinion announcements. And when the sole opinion of the day was read from the bench, in a rollicking appeal about when an agency action is reviewable under the Administrative Procedure Act, in United States Army Corps of Engineers v. Hawkes Co. Inc., Chief Justice John Roberts read the unanimous opinion of the court with the affable charm of a man who has far too much time on his hands. With his trademark rhetorical flair the chief justice expounded joyously on the many charms of peat. (Whiskey! Fertilizer! “Structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts.”) The court granted a single case, and issued warring opinions from weary jurists intent upon relitigating their longstanding death-penalty and jury-instruction disputes. Justice Clarence Thomas (joined by Justice Samuel Alito) wrote dutifully about the murder details in a jury instruction appeal, as he is more and more wont to do. (Hooker! Hunting knife! Bloodstained shoes! Depravity!) Justice Stephen Breyer (joined by Justice Ruth Bader Ginsburg) dissented in a death penalty appeal to remind us of the geographic disparities in capital sentences.

***

All of which brings us back to the great marble dustbowl that stands opposite the Capitol, and all the ways in which the justices who ostensibly work there have the look of resigned underemployment about them; a look that perhaps perfectly mirrors this moment in American history. Watching the justices assemble, dress, climb to their seats on the bench, and listen to the chief read out a unanimous opinion in a case about peat, it was clear that at least some of them might appreciate some interesting work until a ninth member is seated—work that might transcend halfhearted ideological infighting. I’m thinking they can maybe rent a bus and start a band. Or mow lawns or maybe babysit. But as the high court sputters along on its new screensaver mode, the fact that government can do next to nothing—even as there is more than ever to do—could not be more depressingly in evidence.

All that said, SCOTUSBlog reports on a judge telling the Court to take up a transgender case:

Arguing that “time is of the essence,” a federal appeals court judge on Tuesday called for a prompt appeal to the Supreme Court to sort out the rights of transgender students when they use restrooms at school. Circuit Judge Paul V. Niemeyer helped clear the way for an early appeal by withholding a demand that the U.S. Court of Appeals for the Fourth Circuit vote on rehearing a test case on the issue. At issue in the case of G.G. v. Gloucester County School Board is the meaning of a 1972 federal civil rights law that outlaws discrimination “because of sex” in federally funded education. Specially at issue is whether that law — known as “Title IX” — provides protection to students who identify as having a gender other than what was assigned to them at birth. There is a widespread, and rapidly growing controversy over that and other transgender rights issues, and the case of sixteen-year-old “G.G.” could be the first to put the issue before the Supreme Court. In some ways, the rapid development of the controversy parallels that over same-sex marriage rights, leading to the Supreme Court decision recognizing equal rights of gays and lesbians to marry, across the nation.

And Rumpole is cracking me up with his posts about a lawyer who is stealing our blog posts.  Great stuff by Rumpole here.

Should we have peremptory challenges in jury selection?

Judge Jon Newman in the NY Times says we should reduce the number to only a few.  The intro:

THE Supreme Court ruled correctly on Monday when it found that Georgia prosecutors in Foster v. Chatman had illegally barred African-Americans from serving as jurors in a death penalty trial. But the decision does not end racial discrimination in jury selection. The best way to do that is to limit the number of jurors that lawyers can strike for no reason at all to just one or two per side.

Both prosecutors and defense lawyers can exclude any number of prospective jurors for legitimate reasons — if a juror knows the defendant, has formed an opinion about the case or is unlikely to be impartial. But lawyers can also dismiss several more potential jurors simply because they do not want them — without explaining why. In federal felony trials, the prosecutor has six peremptory challenges and the defense usually has 10. In federal death penalty cases, each side has 20. State numbers vary.

In the Foster case, which dates from the 1980s, the prosecutors eliminated people simply because of race. Timothy Foster, a black man, stood accused of killing an elderly white woman when he was a teenager. The prosecutors worked conscientiously to exclude the potential black jurors; they marked their names with a “B” and highlighted each black juror’s name in green on four different copies of the juror list. Those jurors were ranked against one another in case, one member of the prosecutorial team said, “it comes down to having to pick one of the black jurors.” The plan worked, and an all-white jury sentenced Mr. Foster to death.

This was an egregious case, but not a unique one. Far too often in criminal or death penalty cases that involve a black defendant, prosecutors try to exclude black jurors because they believe it will increase the chances of a conviction. In Houston County, Ala., prosecutors struck 80 percent of qualified black jurors from death penalty cases from 2005 to 2009.

I took an even more extreme position back in 2005, when I wrote this op-ed for the Herald saying that we should get rid of all peremptory challenges.  I'm not sure I feel the same way any more.  Here's what I wrote back then, 11 years ago:

Posted on Wed, Jul. 06, 2005
JUSTICE
Eliminate race bias in jury selection
BY DAVID OSCAR MARKUS 

Any trial lawyer who says that he does not consider race as a factor when selecting a jury is not telling the truth. And that includes prosecutors, who -- it has been repeatedly shown -- attempt to exclude minorities from juries.
The problem with selecting juries is that the system is geared for relying on stereotypes and prejudice. Each side in both civil and criminal cases can strike a number of jurors from the panel for no reason. These strikes are called peremptory challenges. The idea behind allowing these sorts of strikes is that if the trial concerns, for example, a lawsuit over a dog bite, the lawyers should be permitted to strike a juror who has had a bad experience with a dog, even if that juror claims that she could be fair.
Peremptory challenges, however, have been used to strike jurors for a whole host of other impermissible reasons, like race, religion, gender and ethnicity. The Supreme Court has been struggling with how to keep race out of the jury selection process for many years.
Back in 1986, the Supreme Court in Batson vs. Kentucky prohibited lawyers from using race in their peremptory challenges. The court's decision in that case was nice as a matter of theory, but has failed miserably in practice. It is nearly impossible to show that a potential juror was stricken for a racial reason. Seasoned trial lawyers explain that they struck a juror for ''race-neutral'' reasons, such as the person gave a hostile look or seemed to have too much or too little knowledge of the subject matter, and so on.
Justice Thurgood Marshall -- the first African-American justice -- wrote a separate opinion in Batson, arguing that peremptory challenges always would be abused and that a just and fair system would abolish them altogether. The only way to ''end the racial discrimination that peremptories inject into the jury-selection process,'' he concluded, ''was to eliminate peremptory challenges entirely.'' No one paid Marshall much attention.
The issue of peremptory challenges again came to the Supreme Court's attention last month in Miller-El vs. Dretke, a death penalty case in which 19 of the 20 black potential jurors were stricken. Finding the prosecution's explanations for its strikes ''incredible,'' the court reversed the conviction, reaffirming the unworkable formula in Batson for determining when peremptory challenges were being used appropriately.
Justice Stephen Breyer, agreeing with the reversal, wrote separately to explain that Marshall had it right almost 20 years ago when he suggested that we do away with these challenges altogether. Breyer points out that lawyers are becoming more savvy in explaining away their juror strikes, going so far as to hire expensive jury consultants to help them base their strikes on the theory de jour regarding a particular group of people. Some jury consultants (as the ones used in the cases of Michael Jackson and Martha Stewart), it has been reported, command as high an hourly rate as the lawyers themselves.
Breyer and Marshall are right -- the only way to cut race out of the jury-selection equation is to do away with the peremptory challenge. To do this, judges need to allow lawyers to conduct a real inquiry into jurors' backgrounds so that jurors who would have obvious biases or problems judging a particular case can be excused for cause by the judge.
The Miller-El case demonstrates the high improbability of ever showing racial discrimination under the Batson formula. Despite the strength of his claim, Miller-El's challenge resulted in 17 years of largely unsuccessful and protracted litigation involving 23 judges, eight judicial proceedings and eight judicial opinions, the great majority of which found no Batson violation.
Amazingly, race still plays a major part in selecting juries. More amazing still is that we continue to ignore an easy solution to this problem. The time has come to do away with peremptory challenges and in so doing, to do away with racial prejudice in jury selection.

Broward lawyer Alan Koslow charged with money laundering

Another only-in-South-Florida-story.  And Paula McMahon has all of the details.  Yikes:

Well-known Broward lawyer and lobbyist Alan Koslow was charged Thursday with a federal money-laundering conspiracy after prosecutors said he and a friend laundered what they believed was cash linked to illegal gambling and drug dealing.
Koslow, 62, and Susan Mohr, 57, of Delray Beach, were criminally charged by prosecutors Thursday. The manner in which they were charged suggests both have already reached plea agreements with prosecutors.
Koslow is scheduled to surrender Thursday in federal court in Fort Lauderdale. Mohr is to turn herself in on Tuesday. The criminal charges are linked to an undercover FBI sting that began 3 1/2 years ago.
Koslow accepted $220,000 in cash that he agreed to launder for the undercover FBI agents between December 2012 and August 2013, according to court records. In exchange, he was paid $8,500, investigators wrote.
He first met with two agents in November 2012 and agreed he and Mohr would help them conceal the source of cash, which Koslow was told came from an illegal gambling business and the sale of cocaine and counterfeit Viagra, prosecutor Neil Karadbil wrote in court records.
After the first few transactions, Koslow again met with the sources of the money in February 2013.
"Defendant Koslow met with the undercover agents, discussed laundering $50,000 a month for the next two years for the undercover agents, and explained how their attorney-client relationship would protect them," Karadbil wrote.
The final meeting was Aug. 22, 2013, when Koslow met with the agents in a hotel room in Fort Lauderdale and accepted $50,000 in cash in a FedEx envelope, investigators wrote.

Another EDNY Judge steps up

This time it's Judge Block, who wrote this wonderful sentencing opinion explaining how devastating collateral consequences are and deciding that probation was sufficient punishment.  The whole thing is definitely worth a read.  Why aren't there more judges who are willing to write noteworthy opinions in criminal cases?  Why are so many judges just rubber stamps for the prosecution, or worse, for probation?  Why is there so much group think?

We recently lost Judge Gleeson to private practice.  Thank goodness Judge Block stepped up to check the executive branch.

Here's Slate covering the opinion:

Quoting extensively from the influential book The New Jim Crow by Michelle Alexander, Block expresses moral indignation throughout the opinion at all the ways in which the American criminal justice system makes it harder for people with felony convictions to achieve stability in life. ***

Nesbeth, Block emphasizes, has led a mostly law-abiding life, and is hoping to graduate from college next year before embarking on her chosen career as a teacher. Though “there is no question” that she “has been convicted of serious crimes,” or that “her criminal conduct is inexcusable,” Nesbeth should get a second chance, and does not deserve more than the one year of probation, six months of home confinement, and 100 hours of community service that he sentenced her to, he writes.
“[T]he collateral consequences Ms. Nesbeth will suffer, and is likely to suffer … has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing,” Block writes.
At the end of the opinion, which a law professor described in the New York Times as “the most careful and thorough judicial examination” of collateral consequences he had ever seen, Block argues that when prosecutors, probation officials, and defense lawyers address judges during sentencing, they should feel an obligation to give a thorough and candid accounting of all the ways in which a defendant stands to be crippled by his or her status as a felon. He also calls on Congress and state lawmakers to “determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted, and to take a hard look at whether they do the country more harm than good.”
Block, who has been a federal judge since Bill Clinton appointed him to the Eastern New York district court in 1994, did not say in his opinion whether his beliefs about collateral consequences have ever guided him in the past, or how they will inform his decisions going forward. He was careful, however, to note that each case should be “separately considered,” and that the balancing of all factors “may certainly warrant prison—and even significant prison time—for someone else under different circumstances."

Another win for Lewis Tein

This time to the tune of $4 million. Congrats to them for proving the haters wrong.

Time for a new courthouse in Ft. Lauderdale

GSA says it will cost about $190 million.  From the Sun-Sentinel:

The downtown federal courthouse needs to be replaced, a new federal study has determined, something that local judges, attorneys and area officials have been saying for more than a decade.
The current 37-year-old facility on Broward Boulevard at Northeast Third Avenue has had leaking roofs, mold, flooding problems and cramped offices. It also doesn't meet the latest federal security requirements.
The General Services Administration said a new courthouse would cost an estimated $190 million but that would be more cost effective than leasing a new property or repairing the current building and adding an annex. It ruled out a private-public partnership to do the work, something city and downtown leaders had been investigating because of the lack of movement at the federal level.
"This report takes us an important step forward towards a new safe and secure facility," said Rep. Lois Frankel, whose district includes parts of the city. Frankel, a West Palm Beach Democrat and member of the House Transportation & Infrastructure Committee, got that committee to pass a resolution last year requiring the GSA study.

Let's see if anything actually gets done.

Remember these videos that were posted back in 2013 where it was literally raining in the courthouse:

Is it summer yet?

The weather says yes.

Some quick news:

1.  Slate's Dahlia Lithwick says Trump's SCOTUS choices are bad for women:

The list consists of six federal appeals court judges (all appointed by George W. Bush) and five state supreme court justices (all nominated by Republicans). Most are men. All are white. All are extremely young. Almost all of them have impeccable conservative credentials. The cast of characters appears to be crafted to assuage the worries of movement conservatives such as George Will, who wrote last March that “there is every reason to think that Trump understands none of the issues pertinent to the Supreme Court's role in the American regime, and there is no reason to doubt that he would bring to the selection of justices what he brings to all matters—arrogance leavened by frivolousness.” ...

Trump’s shortlist isn’t surprising, since the presumptive Republican nominee has already suggested that women who have abortions should be punished and affirmed that he will nominate justices who want to overturn Roe v. Wade. But it’s still terrifying in a Supreme Court term in which both reproductive rights and statutorily guaranteed birth control are on the docket. It seems even more terrifying in a moment when Oklahoma has just passed a galactically silly, unconstitutional bill making it a felony to provide an abortion in the state, which Gov. Mary Fallin just vetoed. Donald Trump may want to do away with Roe v. Wade once he’s elected, but Oklahoma lawmakers are already working to turn that dream into a reality—you might say they’re making America great again. 

 2. One of the short-listers, tweeter and Texas Justice Don Willett, gave this commencement speech over the weekend.

3.  Notorious RBG's son is doing some cool things in the music world:

Weaving together historical, ethnic and cultural musical heritage with contemporary sensibilities is precisely the sort of projects that are emblematic of the indie Cedille (say-DEE) Records, whose mission is “to enhance the world’s catalog of recorded music by releasing artists’ explorations of new and underrepresented compositions and documenting their important interpretations of standard repertoire,” according to the president, James Ginsburg, who founded the not-for-profit label in 1989 while in law school at the University of Chicago and, as best he knows, is still considered a student on leave.
That indeterminate status is no longer a concern to his mother, Associate United States Supreme Court Justice Ruth Bader Ginsburg. She and her late husband are responsible for the bug James caught when they took him to see Michael Tilson Thomas conduct the New York Philharmonic performing Igor Stravinsky’s “The Firebird” in New York, where the family lived, when he was 8 years old.
Ruth Bader Ginsburg is a fan of classical music and opera, which she sometimes attended with her colleague, the late justice Antonin Scalia.
James Ginsburg’s musical judgment and production skills are formidable enough to have earned his label nominations and Grammy Awards, as at the most recent ceremony, where the relentlessly inventive Eighth Blackbird ensemble won its fourth for their “Filament” album, and another Cedille ensemble, the New Budapest Orpheum Society (an updated name of the troupe of Jewish musicians in Vienna roughly 1890–1930) received a nomination for the album “ As Dreams Fall Apart: The Golden Age of Jewish Stage and Film Music .” The Society was founded at the University of Chicago by music professor Philip Bohlman , who ferreted out some of the songs for “Dreams” in the Austrian censors’ office in Vienna. “The Nazis were great record-keepers,” Ginsburg said, “so now we can bring this great music back to life.”

4.  Paula McMahon reports on a guy pointing a loaded shotgun at an IRS agent who came knocking at his door.  Maybe the heat got to him:

Hacker is now facing a criminal charge of using a deadly weapon in his encounter with the government employee. Hacker's lawyer, Michael D. Weinstein, said it was an innocent misunderstanding.

"My client thought it was strange that the IRS was coming to see him. He thought it was a scam and he exercised his right to defend himself," Weinstein said.
Hacker had left the house, on the 2000 block of Northeast 31st Avenue, by the time criminal investigators went back to interview him about the alleged assault.

"We'll rebuild the Death Star. It'll be amazing, believe me. And the rebels will pay for it. —Darth Trump."

That was Texas Supreme Court Justice Don Willett on Twitter back in April.  It's funny on it's on, but you gotta love that Trump has put Willett on his short list for SCOTUS.  The NY Daily News has more:

In another biting tweet, Willett typed out a haiku poking fun at Trump’s ability to select a Supreme Court nominee.
“Who would the Donald
Name to #SCOTUS? The mind reels.
*weeps—can't finish tweet*” wrote Willett.
Since 2013, Willett has fired off roughly two dozen tweets insulting Trump.
“Low-energy Trump University has never made it to #MarchMadness. Or even to the #NIT. Sad! ??” Willett wrote on March 15.

William H. Pryor officially on Trump's SCOTUS shortlist

The NYTimes has the list here:

Steven M. Colloton of Iowa; Allison Eid of Colorado;Raymond W. Gruender of Missouri; Thomas Hardiman of Pennsylvania; Raymond Kethledge of Michigan; Joan Larsen of Michigan; Thomas Lee of Utah; William H. Pryor Jr. of Alabama; David Stras of Minnesota; Diane Sykes of Wisconsin; and Don Willett of Texas.

Judge Pryor and I have not always seen eye to eye, but he has found a softer side recently (see here and here) and is extremely smart.

Interestingly, Trump also mentioned a fellow tweeter, Don Willett.

"What poppycock!"

That's one of four exclamation points in Judge Leon's opinion striking DC's concealed carry regulations.  Here's the NY Times article:

Finding that the District of Columbia’s strict gun law is probably unconstitutional, a federal judge ruled Tuesday that, while a challenge to the law is pending, district police must stop requiring applicants to have a “good reason” for seeking a permit to carry a gun on the street.

Judge Richard J. Leon’s 46-page ruling in United States District Court in Washington reopens the district’s long fight over how much room the Second Amendment’s guarantee of the right to bear arms leaves for local regulation — and whether it applies only to firearms in the home, or to guns carried outside as well.

The law gave the police the discretion to grant concealed-carry licenses only to those with “good reason to fear injury” or other specific reasons, such as having a job in which they carried large amounts of cash or valuables.

All citizens have a constitutional right to keep firearms in their homes for self-defense, the United States Supreme Court ruled in 2008 in District of Columbia v. Heller.

Referring to that ruling, Judge Leon wrote, “The district’s understandable, but overly zealous, desire to restrict the right to carry in public a firearm for self-defense to the smallest possible number of law-abiding, responsible citizens is exactly the type of policy choice the justices had in mind.”

Meantime, the poll from yesterday has about 100 votes, with only 10% saying the mural should be taken down. The other 90% is split between options 2 and 3, saying that it should be left up. Interestingly, many people think the mural contains demeaning images that can be viewed as racist but that it should be left up as historical (option 3).

What should we do with the mural in the Dyer Courthouse?

MDC taking over the Dyer Courthouse was received with universal praise (background post).  The one issue that has generated lots of heated debate is the mural in the central courtroom.  There were some comments on the post, but there were lots of emails, calls and discussion about what we should do with the mural (including from federal judges with different viewpoints). 

There seem to be three camps, including in the poll below:

What should be done with the mural?

The mural is racist. It contains demeaning images of minorities and has no place in today's courtrooms. It should be painted over. Imagine if you were a black man being sentenced in that courtroom how you would feel.

The mural is historical. It was made in the 30s and it simply depicts the times. Don't take it down. It is a beautiful mural and makes the central courtroom what it is.

The mural has demeaning images and can be viewed as racist, but it is also historical. It is not an image of racism like the Confederate flag, so it should not be painted over.

Quiz Maker

David W. Dyer building to be used by Miami-Dade College

I love this courthouse and I miss trying cases in it.  But this is good news as it will finally be put to use again.

The Herald covers the deal here:

Miami’s old federal building, a Depression-era Neoclassical masterpiece that’s among the grandest of the city’s historic structures, has been vacant and moldering since 2008, its fate uncertain. But now a rescue is in the offing that will restore it to public use.
After years of negotiation, the federal government has agreed to cede the 1933 landmark to its neighbor, Miami Dade College, for use as an academic and civic building. The college and the government’s property-management arm, the General Services Administration, signed a 115-year, one-dollar-a-year lease agreement Wednesday evening.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article77050342.html#storylink=cpy

The building is really cool:

The federal building, which housed the central Miami post office and all federal agencies but the weather bureau when it opened in 1933, was designed by Coral Gables’ chief architect, Phineas Paist, and Miami architect Harold Steward, with an assist from Marion Manley, the first licensed female architect in Florida and designer of early University of Miami buildings. Paist and Steward also collaborated on the design of Coral Gables City Hall and the buildings at the Liberty Square housing project. (Another Gables connection: that magnificent courtroom mural, Law Guides Florida Progress, is by artist Denman Fink, designer of the Venetian Pool.)
Although it was the height of the Great Depression, the government spared no expense on the building, believed to be the largest structure in South Florida made of Florida limestone. Window surrounds are made of marble, as are the floors and former post-office tabletops still in place in its elongated lobby. Spandrel panels running beneath the second-story windows on the main facade depict scenes from Florida history. That facade is defined by a towering row of Corinthian columns. Inside, original chandeliers and coffered ceilings are still in place, the college said.

***

The central courtroom was also the scene of some historic legal events, including the Congressional Kefauver hearings into organized crime that were televised to the nation in the 1950s and the trial of deposed Panamanian dictator Manuel Noriega in 1991.
But use of the building gradually declined after the post office moved out in 1976. Most federal judges moved to a modern tower annex which opened in 1983, leaving mostly magistrates in the old courthouse. The last moved out after the newest courthouse opened a block away in 2008. The tower annex remains in use by the courts and is not part of the MDC deal.
The GSA then shuttered the historic building, which had been plagued by mold and complaints from court workers about respiratory ailments that had led to closure of some courtrooms and portions of the structure in 2006. The agency has continued to run the air conditioning to keep humidity and deterioration of the interior under control.
But the GSA came under fire from some Republican members of Congress who, during a 2012 hearing in the Dyer building’s central counrtroom [sic], scolded the agency for wasting taxpayer resources by failing to find a new tenant or sell the courthouse. A member of that delegation, Florida U.S. Rep. John Mica, is a Miami-Dade grad who pushed for the deal to give the college use of the building.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/article77050342.html#storylink=cpy

d more here: http://www.miamiherald.com/news/local/community/miami-dade/article77050342.html#storylink=cpy

I wonder what the College will do with the controversial mural in the central courtroom:

It's good to be a prosecutor

Or a former prosecutor:

H. James Pickerstein, a former top federal prosecutor in Connecticut and a popular figure among generations of state lawyers, was sentenced Tuesday to 30 days in prison for stealing more than $600,000 from a former client.
Pickerstein, 69, faced up to 20 years in prison and 33 to 41 months under federal sentencing guidelines after pleading guilty in January to a federal fraud charge. He admitting that he stole $633,410.04 from James Galante, a former Danbury carting company executive. Pickerstein surrendered his law license in December 2014 after his theft came to the attention of his former law firm and federal prosecutors.
Dozens of friends and attorneys were in U.S. District Court in Bridgeport to support Pickerstein, and nearly three dozen people, including former U.S. Magistrate Judge Holly B. Fitzsimmons, wrote letters to U.S. District Judge Victor A. Bolden attesting to Pickerstein's character and generosity to friends and colleagues in need.

***

Court documents show that Galante asked Pickerstein about the missing money and Pickerstein replied that it was for legal fees owed. In August 2014, Galante invited Pickerstein to his office. During the meeting, which Galante secretly recorded, he confronted Pickerstein about the missing money.
"I'm jammed up with my firm," Pickerstein responded, according to the government's sentencing memorandum. "I'm broke, [my son] hasn't worked; my wife's medication is $3,500 a month." He also asked Galante not to turn him in.
Pickerstein's law firm repaid Galante most of the stolen money, and Travelers Insurance repaid the law firm. As part of his sentence, Pickerstein must pay restitution to Travelers and others.
When it came his time to speak, Pickerstein apologized for his crime and to those he has hurt. He also thanked the dozens of people who spoke or wrote letters in support of him.

Meanwhile, if you are looking for something to watch on TV, check out the next episode of American Greed on Thursday May 19 at 10pm.  It's an episode about the South Beach B-girls trial.  From their press release:

The episode will go behind the scenes of the Bar Girls or “B-girls” fraud scheme in
Miami Beach, Florida. South Beach businessmen with ties to the Russian mob trafficked young, attractive women from Latvia and Estonia into the United States illegally on tourist visas. The B-girls’ mission: in teams of two, they hit the town, and lured male tourists into private clubs owned by the Russian mob. The B-girls encouraged their marks to binge drink vodka, and, once the men were sufficiently intoxicated, the B-girls made unauthorized charges – often totaling more than $10,000 in a single night – to the victims’ credit cards.
Records emerging from “Operation Caviar Beach,” the FBI’s undercover investigation of the scheme, show that hundreds of men were victimized and defrauded of more than two million dollars.
John Bolaris, a former meteorologist for Fox affiliate WTXF in Philadelphia, fell victim to the scheme during a trip to Miami Beach in March 2010. Over the course of two days, the B-girls and bar owners fraudulently racked up more than $43,000 in charges on Bolaris’ American Express credit card. Bolaris, who was interviewed for the episode, recalls seeing the time-stamped bar transactions on his Amex bill for the first time: “Every few minutes, $2,000, $3,000, $5,000, $800 tip, $700 tip!” Bolaris believes his signature was forged after he passed out, and that he was drugged when the B-girls gave him a vodka shot: “There’s not too much that goes on after that that I can truly remember.”

No bond for temple bomber

Temple bomber may not be the best way to describe the case... We need a better name for this case like we had for the Liberty City Seven matter.  Any ideas?

In the meantime, Paula McMahon covers the bond hearing:

The Broward man accused of plotting to bomb a Jewish synagogue and school in Aventura will remain jailed until the case against him is decided, a judge ruled Tuesday.
James Medina, 40, of Hollywood, is a flight risk and danger to the community, U.S. Magistrate Judge Andrea Simonton ordered after a hearing in federal court in Miami.
Medina was unemployed, homeless, squatting in an abandoned building in Hollywood, and has a very long history of mental health problems that led to him being involuntarily committed for psychiatric treatment at least twice, Assistant Federal Public Defender Joaquin Padilla said in court.
Padilla said he was "not minimizing" the alleged criminal violence that FBI agents recorded Medina planning.
But the lawyer said Medina is not a "homegrown terrorist" or a person who became "radicalized" overseas. He said Medina has been out of work and has no health insurance and his unspecified mental health problems date back to childhood and have gone untreated for a long time.
"The agents could have gotten Mr. Medina to do anything," Padilla said, arguing that Medina was susceptible to suggestion because of his psychiatric problems.

In other news, Transition is having its big event this Thursday night in which they are honoring District Judge Kathy Williams, State Judge Milton Hirsch, and Murray Greenberg.

11th Circuit conference ends badly

It was the big 11th Circuit conference in Alabama last week, with all of the judges in the Circuit attending.  And the Circuit Justice -- Justice Clarence Thomas -- was there giving the keynote.  But during his speech, Judge Merryday collapsed and had to be rushed out.  The Daily Report has more:

A medical emergency in the back of the room abruptly ended a question and answer program with U.S. Supreme Court Justice Clarence Thomas at the U.S. Court of Appeals Eleventh Circuit Judicial Conference late Friday.
Thomas was starting to talk about legal opinions on bankruptcy law--saying he worries about challenges facing the judges he had been talking with during the conference --but he never got to finish his sentence. The crowd in the back corner of the ballroom at the Grand Hotel Conference Center began to move and people began saying, "Call 911."
Chief Judge Steven Merryday of the U.S. District Court for the Middle District of Florida had collapsed and fallen to the floor. Agents from the U.S. Marshal's office and hotel security staff immediately came to his aid while they waited for an ambulance to arrive. Thomas waited on stage with University of Georgia Law School Dean Peter "Bo" Rutledge, who had been asking the questions of the justice, and Eleventh Circuit Chief Judge Ed Carnes, who had made the introductions.
They were about halfway through their planned one hour and five minute presentation, after which Carnes was scheduled for 15 minutes of closing remarks.
Soon the marshals gave an order to clear the room and keep a clear path to the door. Hotel staff directed the attendees toward a hallway and a sunny, breezy terrace beside Mobile Bay.
An ambulance arrived within minutes. Emergency responders began speaking to the judge, asking him questions and trying to prompt a response. They asked him to smile if he could understand them. Merryday was conscious and stood for a moment with help before being secured onto a stretcher and moved to the waiting ambulance to drive to a hospital in nearby Fairhope.
Judges and lawyers waiting in the hallway expressed their hope and prayers for the judge's recovery. Some said they were initially afraid they were being attacked when they heard the commotion and a call for 911.
Carnes decided not to reconvene the meeting, which was scheduled to end at 5 p.m. and had run like clockwork for two days. The 160 judges and 300 lawyers in attendance slowly began to leave. Shortly after 5 p.m. Carnes received a phone call, after which he announced to the few still gathered in the hallway that Merryday was at the hospital and in stable condition. His wife had been contacted by a friend and neighbor who is married to another judge attending the conference.

UPDATE -- According to online reports, Judge Merryday is okay.

Is Aventura bomber mentally ill?

From Paula McMahon:

The bond hearing for a Hollywood man accused of planning to bomb an Aventura synagogue has been postponed to Tuesday.
James Gonzalo Medina, 40, is accused of attempted use of a weapon of mass destruction — a dummy bomb he received from a man who was working under cover with the FBI. If convicted, he could face life in federal prison.
***
Gladys Jaramillo, 38, told the Sun Sentinel in a phone interview that Medina is her cousin and that he has suffered from serious mental health problems since he suffered head injuries and was in a coma following a serious car accident some years ago.
"He used to be a normal person but he had a big accident and we thought he was going to die," said Jaramillo, who said she is a teacher and lives in the Bronx. "He has had mental problems since he got in that accident."

May the 4th be with you! (UPDATED)

Happy Star Wars Day!

Judge Rosenbaum has an interesting opinion about a bad cop here.  From the intro:

Defendant-Appellant Timothy Filbeck was a lieutenant with the Butts County Sheriff’s Office. When his house was foreclosed upon, he, like anyone else who has been through foreclosure, had certain options available to him. But arresting the new owner’s agents, Plaintiffs-Appellees David Carter, Clayton Graham, Jr., and Mitchell Webster (collectively, “Plaintiffs”), who were lawfully performing their jobs, was not one of them. And neither was ordering Plaintiffs handcuffed and thrown in jail overnight. We think that should go without saying. Yet Filbeck did these things, anyway. Now Filbeck tries to convince us that he is immune from suit. We are not persuaded. Being a law-enforcement officer is not a license to break the law. And it is certainly not a shield behind which Filbeck may abuse his power with impunity.

UPDATE --  Judge William Pryor has issued another pro-defendant opinion, this time for a pro-se serial filer:

This appeal presents a question of first impression about the “three strikes”
provision of the Prison Litigation Reform Act, which ordinarily denies in forma
pauperis status to a prisoner who “on 3 or more prior occasions” brought a federal
action or appeal that “was dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted,” 28 U.S.C. § 1915(g).
Waseem Daker is a state prisoner and a serial litigator in federal courts. Daker has
submitted over a thousand pro se filings in over a hundred actions and appeals in at
least nine different federal courts. In this lawsuit, the district court denied Daker’s
petition to proceed in forma pauperis because it concluded that he had six strikes
under the Act. Two of Daker’s earlier filings were dismissed for lack of
jurisdiction, and the other four were dismissed for want of prosecution. In three of
the four dismissals for want of prosecution, a judge of this Court determined that
Daker could not proceed in forma pauperis because his filings were frivolous. But
a single circuit judge cannot dismiss an action or appeal, Fed. R. App. P. 27(c);
instead, panels of this Court dismissed Daker’s filings because he failed to pay the
filing fee, 11th Cir. R. 42-1(b). Although Daker is a serial litigant who has clogged
the federal courts with frivolous litigation, we must follow the text of the Act,
which does not classify his six prior dismissals for lack of jurisdiction and want of
prosecution as strikes. We vacate the dismissal of Daker’s complaint and remand
for further proceedings.

FBI stops plot to bomb Aventura temple (update)

Mag court should be interesting today. Judge Turnoff is presiding. The Herald has more here:

A Hollywood man was arrested Friday night by FBI agents while he was attempting to carry out an explosive attack on an Aventura synagogue, according to officials.
Juan Medina is accused of plotting with confidential FBI sources in an attempt to blow up the Aventura Turnberry Jewish Center, 20400 NE 30th Ave., during services on Friday.
Medina was held in the Federal Detention Center in downtown Miami over the weekend and is expected to have his first appearance Monday afternoon in magistrate court.
He is expected to be charged with a weapons of mass destruction offense.
He was portrayed by law enforcement officials as being anti-Semitic, and that might have been be a factor in his motivation to carry out the deadly plot.

UPDATE -- well, the mag appearance was indeed interesting.  From the Sun-Sentinel:

The suspect seemed to want to make a speech in court but was shut down by U.S. Magistrate Judge William Turnoff.
"I've got a few words of my own. ... My name is James Medina, aka James Mohammed," he told the judge.
***
On Monday, the judge ordered Medina will remain locked up at least until a detention hearing Thursday morning where the prosecution and defense can make their arguments.
Medina said in court that he is out of work, divorced and has no significant assets. The judge appointed the Federal Public Defender's Office to represent him. Office policy prohibits assistant federal public defenders from commenting on pending cases.

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/aventura/article75089722.html#storylink=cpy