Sports Cases on an NFL Opening Weekend

By John R. Byrne

For starters, I’d like to thank David for giving me the opportunity to post on his blog.  He’s created something special, and I’ll do my best to meet the high standards he has set.

Given that we already have a great group of (mostly) criminal law-focused bloggers, I plan to focus my posts on the civil side of the federal fence.  Still, today, in keeping with the theme of this post, I’m covering a few criminal cases. 

1.  Clinton Portis—the former University of Miami and NFL running back—pled guilty this week to participating in a health care fraud scheme.  The scheme involved submitting false claims to the NFL Player Health Reimbursement Account Plan.  Although the case was prosecuted in the Eastern District of Kentucky, there is a Miami nexus (the Miami FBI Field Office helped with the investigation).  Miami sports fans may recognize another defendant, Tamarick Vanover, who played at FSU and later the NFL (in one Miami-FSU classic at the Orange Bowl, he took the opening kickoff to the house).

2.  The Dolphins open the season against the New England Patriots.  Back in February of 2019, Florida state prosecutors charged the owner of the Pats, Robert Kraft, with misdemeanor solicitation (a charge that was dropped).  In late July, Palm Beach County Judge Leonard Hanser ordered the state to destroy the previously suppressed video evidence (this followed a S.D. Fla. federal court order this past January ordering the video’s destruction).  The case had many a twist and turn and Vanity Fair published a long article about it, if you’re interested in reading more.  

3. In golf news, a week or so back, Judge Ruiz issued an order granting summary judgment to the PGA Tour in a lawsuit filed by Hank Haney.  In short, Haney had blamed the PGA Tour for costing him his radio show at Sirius XM Radio (Sirius had cancelled Haney’s show after he made comments predicting a “Korean” to win the U.S. Women’s Open and going with the last name “Lee” because, if he “didn’t have to name a first name, I’d get a bunch of them right.”).  Order was picked up by ESPN and other news outlets. 

4.  Finally, and on a non-sports note, the high-profile federal criminal trial of Theranos founder Elizabeth Holmes began this past week.  You can read about the opening statements here.  Both sides seem to have the right strategy, with the defense looking to humanize Holmes and calling her "innocent" and the government portraying her as a greed-driven executive. 

 Hope everyone has a great weekend and that the Dolphins get the W.

 

Shadow Dockets

 

By Marissel Descalzo

 

Thank you David for inviting me to serve as a guest blogger.  I’m very excited for this opportunity to contribute to the community you’ve created.

 

If you’ve been following the news over the past few days, you’ve probably heard about the Supreme Court’s cryptic “shadow docket.” The “shadow docket” is a phrase coined by William Baude, a professor at the University of Chicago Law School, to describe the use of emergency orders and summary decisions by the Supreme Court without full briefing and oral argument. 

 

Shadow docket cases typically arise from emergency requests to stop a lower court’s decision where the applicant has to show “irreparable harm” absent immediate intervention. The Supreme Court has historically used the shadow docket to decide unambiguous cases (e.g., federal death penalty cases). 

 

Recently, there has been a recent shift in the type and number of cases being decided on the shadow docket. In the past 18 months, the Supreme Court has issued shadow docket decisions on issues involving the COVID-19 pandemic, restrictions on places of worship, and changes to voting rules during the pandemic.  

 

In the last week of August alone, the court decided three highly politically charged issues – the Biden administration’s eviction moratorium, the Trump administration’s “Remain in Mexico” policy, and the new Texas abortion law – all on the shadow docket. Arguably, the most controversial decision related to the Texas abortion law.  The decision was widely reported and criticized, even David blogged about it  and was reported throughout mainstream media, including was the Texas abortion law  HERE.

 

Critics claim that the “right” is using the shadow docket to push an agenda.  Steve Vladeck, a law professor at the University of Texas School of Law, strongly supports this view.  He’s been tracking the shadow docket and reports that 41 requests for emergency relief were submitted by the Trump administration, while only eight were submitted by the Obama and Bush administrations combined.  More about Professor Vladeck’s opinions can be found HERE.

 

Whatever the motivation, the use of the shadow docket is certainly troubling and downright dangerous.  Significant issues that affect our legal system and vulnerable populations are being decided without the benefit of briefing, oral argument, and public input through amicus briefing.  Here’s to hoping that these matters shift back into the light and out of the shadows!

 

 

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Some good reads and great things to watch.

 By Margot Moss:

1.  “I helped destroy people.”  No - not the words of Sal Magluta during the era of the Cocaine Cowboys.  That’s FBI agent Terry Albury.  Albury says that he, along with his colleagues, “were compelled to commit civil and human rights violations.”  The story is here in this Sunday’s New York Times Magazine section.  Albury stated:  We’ve built this entire apparatus and convinced the world that there is a terrorist in every mosque, and that every newly arrived Muslim immigrant is secretly anti-American, and because we have promoted that false notion, we have to validate it. So we catch some kid who doesn’t know his ear from his [expletive] for building a bomb fed to them by the F.B.I., or we take people from foreign countries where they have secret police and recruit them as informants and capitalize on their fear to ensure there is compliance. It’s a very dangerous and toxic environment, and we have not come to terms with the fact that maybe we really screwed up here,” he says. “Maybe what we’re doing is wrong.”  Albury became so convinced that it was wrong that he leaked documents to the media “exposing the hidden loopholes that allowed agents to violate the bureau’s own rules against racial and religious profiling and domestic spying as they pursued the domestic war on terror.”  For sending these documents, Albury was arrested and sentenced to 4 years in prison.  

Sometimes, the bad guys in the courtroom aren’t the defendants.  

2.  In another good read, a law review article examines the “deep flaw” of the sentencing guidelines’ loss section, which “routinely recommends arbitrary, disproportionate, and often draconian sentences.”  Not only does the loss section fail to address unwarranted disparities among similarly-situated individuals, but it “actively exacerbates them.”  Barry Boss and Kara Kapp lay out the history of the guideline, give examples of the outrageous sentences it recommends, and offers reforms that we should pay attention to. 

They point out that some courts “have called the loss tables ‘patently absurd’ and ‘a black stain on common sense’ that rely upon a ‘flawed methodology for tabulating white-collar sentences[.]’  Accordingly, courts have concluded that imposing sentences corresponding to the loss tables would ‘effectively guarantee[ ] that many such sentences would be irrational on their face.’”

Unfortunately, not all courts see it that way and continue to give guideline sentences using the 2B1.1 table.  That’s why reform is necessary.  Boss and Kapp first suggest calculating loss based on actual loss, not intended loss.  Or, in the alternative, to find that the intended loss was substantially likely to occur.  These seem like great places to start.  We all know that Medicare never pays what it’s been billed – if it pays at all.  What do blog-readers think?

3.  I’m fully aware that this is a blog largely devoted to the Southern District of Florida news and notes and other federal goings-on around the country.  But I can’t make my first post without giving a huge shout out to state Chief Judge Nushin Sayfie.  For years, I worked by her side as an APD and then looked up to her on the state bench in Miami.  She is a force and an incredible asset to our community.  And how great is it to have a former criminal defense attorney as the top dog?!  The Passing of the Gavel ceremony recognizing her election as Chief Judge of the 11th Judicial Circuit is this Friday, September 10 at 12:15.  You can watch it live here on YouTube.  Congratulations, Chief Judge Sayfie!

4.  Finally - R.I.P. Michael K. Williams, aka Omar Little, the greatest character on one of the best series on television, The Wire.  If you haven’t watched it, the show is a must-see.  I know David O. Markus likes it.  Here is Michael K. Williams/Omar in a classic scene:

Miami History Part 1

By Michael Caruso:

Thank you David for inviting me to contribute to your blog. For the last 15 years, your blog has been an integral part of our local federal court culture, and I'm flattered that you thought of me. 

For my first post, I wanted to offer an alternative to the current Netflix offering about Miami. In 1994, journalist Susan Orlean wrote an article based on her investigation of the 1994 arrest of horticulturist John Laroche and in south Florida for poaching rare orchids in the Fakahatchee Strand State Preserve.

Two years later, Orlean wrote another south Florida story. Orlean's story—The Homesick Restaurant—describes Juan Saizarbitoria and his restaurant in Miami and Havana.  Here's an excerpt:

"Saizarbitoria had grown up in the Basque region of Spain, and he had made his way to Cuba in the late thirties by sneaking onto a boat and stowing away inside a barrel of sardines. When he first arrived in Havana, he pretended to be a world-famous jai-alai player, and then he became a cook at the jai-alai club. In 1940, he opened Centro Vasco, and he made it into one of the most popular restaurants in Havana. Having lost the restaurant to Castro, in 1962, Juan Saizarbitoria moved to Miami and set up Centro Vasco in exile." 

I had not known of Saizarbitoria or his restaurant before coming across the article. Orlean reports from Centro Vasca in Miami and also visits the Havana restaurant taken away from Saizarbitoria. I fear that not much of this type of Miami history will be preserved, and I thought I'd share.

Blog changes

 I started this blog as a pet project back in 2005 as a way to keep up with our District and federal courts in general.  I didn't really think anyone would read it when I started.  But after 4044 posts and 15,104 comments over 16 years, we have 5.3 million views and lots of good tipsters.  

But now it's time to add some new voices and perspectives.  So you are going to start seeing some new authors pop up.  

Our all-star lineup includes:

John R. Byrne

Michael Caruso

Marissel Descalzo

Alaina Fotiu-Wojtowicz 

Robert Kuntz

Margot Moss  

Phil Reizenstein

I am going to continue to post (so definitely keep sending your tips), but it's way past time for the blog to open up a little bit.

Thanks for being part of the small federal family we have here in the Southern District and enjoy the new upcoming posts by our new contributors!

I'm really excited about this -- I hope you are too.