Judge Jordan sits for first time on Miami panel

He was paired with Judge Martin and a visiting judge this week on the 12th Floor of the King Building.  It was the first time Judge Jordan was on an oral argument calendar in Miami.  They heard an interesting case regarding a "voter purge" issue.  John Pacenti covered the story.

President Obama is trying to get other judges on the 11th Circuit.  But it's a slog.  Here's the latest from the Robin McDonald:

Georgia's Congressional Democrats met Thursday in Washington with staff of the Office of White House Counsel to discuss Georgia's open federal judgeships, an aide to U.S. Rep. David Scott confirmed.
The meeting took place after Georgia's five Democratic House members sent a letter on Sept. 17 to President Barack Obama's White House counsel, Kathryn Ruemmler, expressing their shock and disappointment over a proposed list of six candidates for federal judgeships in Georgia, including two open seats on the Eleventh Circuit U.S. Circuit Court of Appeals and four seats on the District Court.
... In their letter to the White House counsel, the Democratic congressmen insisted it is "essential" that they participate in selecting candidates for nomination to the federal bench "to ensure a representative federal judiciary in Georgia."
The current slate of proposed nominees includes one African-American woman for the District Court, three white women—two for the Eleventh Circuit and one for a District Court seat—and two white men for the District Court.
Georgia lawyers familiar with the nomination process who asked not to be identified because of the sensitivity of the negotiations have told the Daily Report that the proposed nominees for two open seats on the Eleventh Circuit are:
• Jill Pryor, a partner at Atlanta's Bondurant, Mixson & Elmore whom President Obama has twice nominated to an open post on the Eleventh U.S. Circuit Court of Appeals.
• U.S. District Court Chief Judge Julie Carnes of the Northern District of Georgia, who was appointed by President George H.W. Bush in 1992.
U.S. Senators Saxby Chambliss and Johnny Isakson have, so far, blocked Pryor's nomination, but as part of the deal agreed to waive their objections in return for Carnes' appointment and three nominees of their choosing for the Northern District of Georgia bench.
Carnes' nomination, if confirmed, would create a fourth vacancy on the District Court bench in Atlanta, where three judges who took senior status in 2009, 2010 and this year have yet to be replaced.
The senators' picks for the Northern District are:
• Troutman Sanders partner Mark Cohen, whose name the senators put forth first in 2010 for the Northern District bench and then in 2011 for the Eleventh Circuit after he defended Georgia's voter identification law in a federal lawsuit;
• DeKalb County State Court Judge Eleanor Ross, a former prosecutor who was appointed to the bench by Governor Nathan Deal in 2011 and the only African-American on the list;
• Judge Michael Boggs of the Georgia Court of Appeals , a former Superior Court judge from the Waycross Judicial Circuit in the Southern District of Georgia and a Deal appointee to the appeals court.
The only Democratic nominee for the District Court is Leigh Martin May, a personal injury and product liability attorney at Butler Wooten & Fryhofer.

The Miami Herald ran an op-ed earlier in the week, titled: "Blacks lack presence on federal court." Here's the intro:

The government shutdown epitomizes the dysfunction caused by a small faction of Congress. But for federal judicial nominations, which require the “advice and consent” of the Senate, obstruction is nothing new. The confirmation process has been broken for some time. The result is a judicial vacancy crisis that harms the administration of justice and, just as important, the diversity of the federal bench.
Sen. Marco Rubio has blocked the nomination of William Thomas to Florida’s federal district court. Thomas is the first openly gay African-American nominee to any federal court. Sen. Rubio’s own 64-member judicial search commission supported Thomas as did the senator, initially. Sen. Rubio has now withdrawn his support, effectively denying Thomas a confirmation vote by the Senate. This obstruction, in the face of a superbly qualified candidate, is cause for great concern. But it is not the only issue looming for Florida’s federal judiciary.
Another issue concerns the racial diversity of judges on the federal appellate court that serves Florida, Georgia and Alabama, the U.S. Court of Appeals for the Eleventh Circuit. With the ever-shrinking docket of the U.S. Supreme Court, the Eleventh Circuit is effectively the court of last resort for residents of these states. Twenty-five percent of the residents are African-American, giving the Eleventh Circuit the highest percentage of African Americans of any circuit court in the country.
Although there are 12 judicial seats on the Eleventh Circuit, only one is held by an African American. Judge Charles Wilson, from Florida, was appointed by President Clinton in 1999.
Only one other African American has ever served on this court. The Eleventh Circuit was created in 1981, when Congress divided six states comprising the Fifth Circuit into two circuits. At that time, Judge Joseph Hatchett, also a Floridian and the only African American on the Fifth Circuit, was reassigned to the Eleventh. When he retired, Judge Wilson took his place.
In other words, the number of African-American judges sitting today on the Eleventh Circuit is the same as it was more than 30 years ago. This should concern everyone who cares about ensuring that our federal judiciary reflects the diversity of our nation and that our courts inspire confidence among our communities. Given its substantial African-American population, and the large pool of superbly qualified African-American attorneys and judges from which to select an appellate judge, the Eleventh Circuit should have more than one African-American jurist by this time.

Read more here: http://www.miamiherald.com/2013/10/08/3677936/blacks-lack-presence-on-federal.html#storylink=cpy

We need more Judge Gleesons

I can't do justice to the 60-page sentencing order that Judge Gleeson entered today, calling DOJ out for using the threat of 851 enhancements to force defendants to plead. 

Here's the conclusion to the must-read order:

I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him. The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over. Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose. It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee
him: hold the government to its burden of proving him guilty beyond a reasonable doubt. And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.
Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose – to no avail.”181 I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty. But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy. Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations. If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.

And here's the entire order:

US v Kupa Statement of Reasons Final

Tuesday news and notes

1.  David Mandel, the lawyer who got the huge verdict against TD Bank in the Coquina case, participated in a charity boxing event and knocked down his opponent.  Check out the video here. 

2.  Kim Rothstein's lawyer Scott Saidel was sentenced to 3 years in federal prison yesterday. From the Sun-Sentinel:

The courtroom was packed Monday morning, nearly 30 strong with supporters of the fallen attorney.
Saidel's defense attorney, Tama Beth Kudman, said her client was not driven by profit or greed and that he erred by viewing Kim Rothstein as a friend rather than a client.
"He saw this woman drowning and he tried to help her," Kudman told the judge. "She was losing everything in the world through no fault of her own. … He handled this horribly, and what he did was absolutely wrong."
Kudman, in her quest for a minimal sentence, emphasized Saidel's "extraordinary life of kindness, and empathy and giving."
"He has lost his career … his wife and child have moved out of their home. … He has no money left," Kudman said. "He's lost everything in the world."
As part of his plea deal, Saidel has agreed to forfeit $515,000 to federal authorities — including the $65,000 he received in legal fees from Kim Rothstein, four expensive pens and a pair of mother of pearl, diamond and sapphire cuff links.
Federal prosecutor Lawrence LaVecchio did not discredit Saidel's good deeds or cooperation with authorities, but he did take issue with minimizing the forethought and planning that went into the scheme to hide the jewelry.
"Nobody gets dragged into federal criminal court in cases like these because they committed errors in judgment," LaVecchio said. "It's not some isolated event, or lapse in judgment, that brought the defendant here today."
From a lectern in the middle of the courtroom, Saidel offered a round of apologies to the government, prosecutors, the judge, the Florida Bar, friends, family and — his voice cracking with emotion — to his client, Kim Rothstein.
"I am profoundly sorry for the conduct that led me here today," he said. "I apologize to my family and friends, who I have let down and hurt and embarrassed, and to my client Kimberly Rothstein, who might not find herself standing here in this very same spot at a later time, if I had simply been a better lawyer."

Seems like a huge sentence to me.  What are your thoughts?

3.  Meantime, why do misbehaving prosecutors get a pass in court opinions?  The Huffington Post examines the interesting issue in this interesting article:

Last month, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit ruled that a prosecutor in San Mateo County, Calif., committed "textbook" misconduct when she "knowingly elicited and then failed to correct false testimony" during an armed robbery trial. A judge from the U.S. District Court for the Northern District of California also found misconduct in the case, but ruled it was a "harmless error" and upheld the conviction of the defendant, La Carl Martez Dow. The appeals court panel overturned that ruling, and Dow's conviction.
But an important detail was missing from both those rulings -- the prosecutor's name, Jennifer Ow. At the time of Martez Dow's conviction, she was an assistant district attorney for San Mateo county. She currently holds the same title in Nevada County, Calif.
Earlier this year, the U.S. Supreme Court declined to hear an appeal alleging misconduct by a federal prosecutor who made racially offensive remarks during a drug trial in Texas. Justice Sonia Sotomayor wrote a separate opinion that excoriated the prosecutor, who, she wrote, "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation."
"It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century," she wrote. "Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice."
But Sotomayor didn't name the prosecutor, either. And while her opinion attracted a fair amount of media attention, those initial accounts also failed to give the prosecutor's name.
Ken White, a former federal prosecutor who now blogs at Popehat.com, checked the legal document service PACER and tracked down the name: Sam L. Ponder. He is still an assistant U.S. attorney in Texas.
After White found Ponder's name, many media outlets amended their original reports to include it. But the case is an exception. The names of misbehaving prosecutors are rarely if ever included in appellate court opinions that find misconduct. Those opinions aren't all that well covered in the media to begin with, but when they are, it can take a fair amount of digging for a reporter on the courts beat to match the prosecutor to the case. So most don't.
There's no formal rule precluding the publication of a prosecutor's name in an opinion. White says it's more about professional courtesy.
"It's tradition. It's an informal practice driven by the government's fairly strong stand that the names shouldn't be published," he said. "I've seen some really egregious, outrageous examples of misconduct in which the government actually asked for opinions to be republished to remove names of specific prosecutors." 

4.  The Sun-Sentinel has this long piece on how the Sunrise police department and others like it are making millions off of the cocaine business:

Police in this suburban town best known for its sprawling outlet mall have hit upon a surefire way to make millions. They sell cocaine.
Police confiscate millions from these deals, money that fuels huge overtime payments for the undercover officers who conduct the drug stings and cash rewards for the confidential informants who help detectives entice faraway buyers, a six-month Sun Sentinel investigation found.
Police have paid one femme fatale informant more than $800,000 over the past five years for her success in drawing drug dealers into the city, records obtained by the newspaper show.
Undercover officers tempt these distant buyers with special discounts, even offering cocaine on consignment and the keys to cars with hidden compartments for easy transport. In some deals, they’ve provided rides and directions to these strangers to Sunrise.
This being western Broward County, not South Beach, the drama doesn’t unfold against a backdrop of fast boats, thumping nightclubs or Art Deco hotels.
It’s absurdly suburban.
Many of the drug negotiations and busts have taken place at restaurants around the city’s main attraction, Sawgrass Mills mall, including such everyday dining spots as TGI Fridays, Panera Bread and the Don Pan International Bakery.
Why would police bring criminals to town?
Money.

5.  Is a hot bench always a good thing at the Supreme Court.  The NY Times looks into it:

The Supreme Court has what lawyers call a hot bench, and temperatures are rising.

 

“The hot bench is a bench that asks a lot of questions,” Judge J. Harvie Wilkinson III explained at a judicial conference in June. “The Supreme Court bench seems to me to get hotter and hotter and hotter.”

The justices returned to that bench on Monday. Over the summer, several of them acknowledged that things had gotten out of hand in their courtroom, with their barrage of questions sometimes leaving the lawyers arguing before them as bystanders in their own cases.

Judge Wilkinson, who sits on the federal appeals court in Richmond, Va., made his observations in a public conversation with Chief Justice John G. Roberts Jr. The chief justice pleaded guilty, even as he explained that some people misunderstand the nature of oral arguments.

“First of all, there are excuses for it,” Chief Justice Roberts said.

“We don’t talk about cases before the argument,” he went on. “When we get out on the bench, it’s really the first time we start to get some clues about what our colleagues think. So we often are using questions to bring out points that we think our colleagues ought to know about.”

Justice Ruth Bader Ginsburg made a similar observation to me in August. “Oral argument questions are often directed more to a colleague than to the lawyer,” she said. “It’s a little unruly.”

In remarks at Harvard last month, Justice Elena Kagan agreed. “There’s no doubt,” she said, “that part of what oral argument is about is a little bit of the justices talking to each other with some helpless person standing at the podium who you’re talking through.”

Before Justice Kagan joined the court, she argued before it as United States solicitor general, and she learned to make her points quickly.

“You don’t get a chance to talk in paragraphs at the Supreme Court,” she said.

Chief Justice Roberts gave another reason for the warming trend.

“Recent appointees tended to be more active in questioning than the justices they replaced,” he said, referring to Justices Kagan and Sonia Sotomayor. “It’s nothing bad about either of them. It’s just a fact.”

Justice Ginsburg defended her new colleagues, noting that Justice Antonin Scalia is also a frequent questioner.

“These women are not shrinking violets,” she said. “Justice Sotomayor won the contest with Scalia for who would ask the most questions at oral arguments this year. It’s always Scalia, but this year it was Sotomayor.”

It falls to Chief Justice Roberts to be the traffic cop when two or more of his colleagues try to talk at once, and it is a role he does not relish.

“I’ve had to act as,” he said, pausing to search for the right word, “an umpire in terms of the competition among my colleagues to get questions out.”

There seems to be a consensus that the justices should moderate their volubility.

“It is too much, and I do think we need to address it a little bit,” Chief Justice Roberts said. “I do think the lawyers feel cheated sometimes. It’s nice for us to get a good feel for where everyone else is, but it also would be nice for them to have a chance to present their argument.”

 

Justice Scalia dishes on the devil, pop culture, and ladies

It's an incredible interview in the New York Magazine and well worth the read.  Here are some highlights:


You’ve described yourself as a fainthearted originalist. But really, how fainthearted?
I described myself as that a long time ago. I repudiate that.
So you’re a stouthearted one.
I try to be. I try to be an honest originalist! I will take the bitter with the sweet! What I used “fainthearted” in reference to was—
Flogging, right?
Flogging. And what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional. I gave a talk once where I said they ought to pass out to all federal judges a stamp, and the stamp says—Whack! [Pounds his fist.]—STUPID BUT ­CONSTITUTIONAL. Whack! [Pounds again.] STUPID BUT ­CONSTITUTIONAL! Whack! ­STUPID BUT ­CONSTITUTIONAL … [Laughs.] And then somebody sent me one.
***
It was recently reported that the justices don’t communicate with one another by e-mail. Do you go online at all?
Yeah. Sure, I use the Internet.
You’ve got grandkids. Do you feel like the Internet has coarsened our culture at all?
I’m nervous about our civic culture. I’m not sure the Internet is largely the cause of it. It’s certainly the cause of careless writing. People who get used to blurbing things on the Internet are never going to be good writers. And some things I don’t understand about it. For example, I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that ­people want to put out there, This is my life, and this is what I did yesterday? I mean … good grief. Doesn’t that strike you as strange? I think it’s strange.
I’ve gotten used to it.
Well, I am glad that I am not raising kids today. And I’m rather pessimistic that my grandchildren will enjoy the great society that I’ve enjoyed in my lifetime. I really think it’s coarsened. It’s coarsened in so many ways.
Like what?
One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, ladies using it. People that I know don’t talk like that! But if you portray it a lot, the society’s going to become that way. It’s very sad.
And you can’t have a movie or a television show without a nude sex scene, very often having no relation to the plot. I don’t mind it when it is essential to the plot, as it sometimes is. But, my goodness! The society that watches that becomes a coarse society.
***
Can I ask about your engagement with regular pop culture?
I’m pretty bad on regular pop culture.
I know you watched the show 24. Do you also watch Homeland?
I don’t watch Homeland. I don’t even know what Homeland is. I watched one episode of—what is it? Duck Dynasty?
What?
I don’t watch it regularly, but I’m a hunter. I use duck calls …
Did you just stumble on it by accident?
No! So many people said “Oh, it’s a great show” that I thought I’d better look at it. Have you looked at it?
No. But there are three books on the New York Times’ best-seller list about Duck Dynasty.
Is that right?
Yes. Three. Did you watch The ­Sopranos? Mad Men?
I watched The Sopranos, I saw a couple of episodes of Mad Men. I loved Seinfeld. In fact, I got some CDs of Seinfeld. ­Seinfeld was hilarious. Oh, boy. The Nazi soup kitchen? No soup for you!
 ***
You believe in heaven and hell?
Oh, of course I do. Don’t you believe in heaven and hell?
No.
Oh, my.
Does that mean I’m not going?
[Laughing.] Unfortunately not!
Wait, to heaven or hell?
It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.
But you don’t have to be a Catholic to get into heaven? Or believe in it?
Of course not!
Oh. So you don’t know where I’m going. Thank God.
I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?
Can we talk about your drafting process—
[Leans in, stage-whispers.] I even believe in the Devil.
You do?
Of course! Yeah, he’s a real person. Hey, c’mon, that’s standard Catholic doctrine! Every Catholic believes that.
Every Catholic believes this? There’s a wide variety of Catholics out there …
If you are faithful to Catholic dogma, that is certainly a large part of it.
Have you seen evidence of the Devil lately?
You know, it is curious. In the Gospels, the Devil is doing all sorts of things. He’s making pigs run off cliffs, he’s possessing people and whatnot. And that doesn’t happen very much anymore.
No.
It’s because he’s smart.
So what’s he doing now?
What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.
That has really painful implications for atheists. Are you sure that’s the ­Devil’s work?
I didn’t say atheists are the Devil’s work.
Well, you’re saying the Devil is ­persuading people to not believe in God. Couldn’t there be other reasons to not believe?
Well, there certainly can be other reasons. But it certainly favors the Devil’s desires. I mean, c’mon, that’s the explanation for why there’s not demonic possession all over the place. That always puzzled me. What happened to the Devil, you know? He used to be all over the place. He used to be all over the New Testament.
Right.
What happened to him?
He just got wilier.
He got wilier.
Isn’t it terribly frightening to believe in the Devil?
You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil.
I hope you weren’t sensing contempt from me. It wasn’t your belief that surprised me so much as how boldly you expressed it.
I was offended by that. I really was.

All in

AFPD Jan Smith made as big a gamble as I've ever seen in a trial, and it paid off. A Hobbs Act case, where the defendant testified, both sides got 30 minutes for closing. After the government's initial closing argument, Jan waived the defense's closing. This meant that the government could not get back up for its rebuttal.

The jury came back not guilty.

Wow, what an incredible gambit!

I think defense lawyers must take risks in trial to win. But this takes the cake. Hats off to Jan Smith for having the guts to do this.

In 11th Circuit news, Judge Carnes is talking structuring.  And he reversed a defendant's conviction in U.S. v. Lang.  Here's the conclusion:

In this case, each count of the indictment charges as a separate structuring crime a currency transaction involving a single check. Each check alleged is for an amount less than $10,000, and no combination of two or more checks is alleged in any count. See App. A. A cash transaction involving a single check in an amount below the reporting threshold cannot in itself amount to structuring because the crime requires a purpose to evade the reporting requirement, and that requirement does not apply to a single cash transaction below the threshold. The government’s theory (at least its current theory) is that Lang received from one source 21 payments exceeding $10,000 over a period of eight months, he had those larger payments broken into multiple checks each of which was less than $10,000, and he then cashed those checks separately in a way that evaded the reporting requirements. That is all well and good, but it is not what is alleged in the indictment. Instead of a series of counts each alleging a payment or payments totaling more than $10,000 that were structured into checks of smaller amounts, which were then cashed, the indictment consists of 85 counts each of which separately alleges that a single check in an amount less than $10,000 was structured. That is not possible. When cashed checks come to the structuring dance, it takes at least two to tango.
***
For these reasons, we conclude that the indictment is “so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted.” Pena, 684 F.3d at 1147 (quotation marks omitted). This is not a mere multiplicity situation where some counts may be upheld if others are vacated. See United States v. Bonavia, 927 F.2d 565, 571 (11th Cir. 1991); United States v. Mastrangelo, 733 F.2d 793, 802 (11th Cir. 1984). Where no count in the indictment charges a crime, the defendant is entitled to have the judgment vacated and the case remanded with instructions that the indictment be dismissed.