Third Circuit raises interesting issue on loss in fraud case

 Defense attorneys make the argument all of the time -- hold the client responsible for the actual loss in the case, not the "intended" loss.  The Third Circuit raised this interesting point about the issue in a case where a defendant made about $30,000 but the "intended" loss, according to the district court, was $36 million:

Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly.  Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended.  By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.”  United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring).  But Kirschner assumes the comment is correct, and so we will too.

I haven't seen this argument before, which I'm sure will be making its way into all sentencing briefs and appeals going forward.  Let's hope some more sensibility comes around for these crazy loss calculations. By the way, the 3rd Circuit reversed the loss finding on other grounds and remanded to the district court for a fuller hearing and analysis.

Weekend news and notes

 1.  Amy Comey Barrett finally got to meet her colleagues in person.  From CNN:

2.  Can Chauvin win on appeal?  From the AP:

The defense has said it was impossible for Chauvin to get a fair trial in Minneapolis because of pretrial publicity and community pressure on jurors to convict. That claim is sure to underpin any appeal.

As they arrived at and left the courthouse each day for testimony, jurors passed clear signs that the city was preparing for renewed protests. The courthouse downtown was encircled by razor wire and guarded by armed troops. Most storefront windows were boarded up.

A prime target of an appeal would be key rulings by trial Judge Peter Cahill, including that the trial should remain in Minneapolis rather than be moved and that jurors should be sequestered only for deliberations.

Cahill also refused to delay the trial after Minneapolis announced a $27 million settlement with Floyd’s family during jury selection. The defense says that suggested guilt before jurors even heard evidence.

The defense has decried as prosecutorial misconduct remarks by the state during closings, including that aspects of the defense case were “nonsense.” That claim could make its way into an appeal.

3.  Is it a federal crime to inflate your law schools U.S. News rankings?  Orin Kerr has this thread looking at this interesting question.  The 11th Circuit's Takhalov opinion will be a hurdle...

4.  Yours truly was in SDNY this week.  Here's some coverage from Ghislaine Maxwell's arraignment.

"Chauvin verdict: Don't hate his lawyer"

 That's the title of my latest article in The Hill.  Below is the introduction.  Let me know your thoughts.

Hate mail. Distancing from friends and family. Criticized and second-guessed by the media. All criminal defense lawyers can feel for attorney Eric Nelson and what he has gone through during his high-profile representation of a deeply unpopular client, former Minneapolis police officer Derek Chauvin, who was convicted on all charges Tuesday in the killing of George Floyd.

It’s hard to fight any case at trial. Defense lawyers often face hostile prosecutors, judges, prison guards, and probation officers every day — but in a high-profile case, add to that a hostile media, public, and even popular movements.

CNN’s Jake Tapper said Nelson was gaslighting the jury during the closing. While the jury was deliberating, the President of the United States said he was praying for the victim and that the evidence was overwhelming. A congresswoman said that if the jury returned a verdict of not guilty, protestors should become more confrontational. And I’m sure closer to home, Nelson’s friends and family asked him “How can you represent that person?”

There’s no other profession in America where everyone is rooting against you.

If Chauvin had been shot on his way to the courthouse, it’s hard to imagine anyone sending hate mail to or criticizing the surgeon who operated in an attempt to save his life. No one would protest outside of the surgeon’s office or home. That’s not the same for the criminal defense lawyer.

Sen. Rubio announces competing JNC

 There's the Congressional JNC.  And now there's the Rubio JNC.  Scott is not participating.  So it's unclear how Biden will go about selecting judges and U.S. Attorneys.  Here is the list from Rubio, which includes some prominent Democrats (like Dan Gelber and Seth Miles):

Southern District JAC:
Carlos Lopez-Cantera – Statewide Chair
Manny Kadre – District Chair
Georgina A. Angones
Nelson Diaz 
Renier Diaz de la Portilla 
Albert E. Dotson, Jr. 
Robert H. Fernandez 
Dan Gelber 
Jillian Hasner
Jorge Hernandez-Toraño
Yolanda Cash Jackson 
Seth Miles
Bernie Navarro 
Ed Pozzuoli 
Steve L. Waserstein

News & Notes

1. Any thoughts on the closing arguments yesterday? It looked to me that the prosecution's rebuttal was the best of the three. Lots of good rhetoric. For example: "You were told, for example, that Mr. Floyd died because his heart was too big... the truth of the matter is that the reason George Floyd is dead is because Mr. Chauvin's heart was too small."

2. Joe DeMaria is rightfully fighting the mask protocols in Miami for trials. It's impossible to cross examine a witness wearing a mask. Here's his petition in the 3rd DCA (Law360 subscription necessary) and the article in the DBR (subscription necessary). The argument section starts out like this:

The constitutional right to due process in judicial proceedings requires that a party be allowed to examine a witness in a form that allows the factfinder to fully assess the witness’s credibility. Under the circumstances of this case, the process due to Dresser includes the right both to testify unmasked, and to require to her witnesses to testify without a mask.

3. Who is the greatest Supreme Court Justice of all time? SCOTUSblog ran a pool and your winner is... Earl Warren. Here's the intro to the post:

Forget Ali vs. Frazier, Celtics vs. Lakers, or Evert vs. Navratilova. It’s time for Marshall vs. Warren.
After three rounds of the first-ever SCOTUS bracketology tournament, only two justices remain. Both held the title of chief justice. Both reshaped American law and society. Both are legal titans who defeated a string of worthy contenders to reach the championship. But only one can be chosen by SCOTUSblog readers as the greatest justice in the court’s history.
To see how we got here, you can review the first-round results, the second-round results and the semifinals. We explained our original seeding and selection criteria here. Of course, no March Madness tournament is without controversy, and a few malcontents have sneered at ours. Too triumphalist? Lousy seeding? Skewed in a liberal direction? Skewed in a conservative direction? We heard those complaints and more. Our bracket even inspired a rival tournament with a slightly different agenda – an event premised on underachievement that no one should be proud of winning. Kind of like the NIT.
But enough with March Madness melodrama. This is the final round of the Big Dance, and it’s time to vote. Here’s the championship match-up.