Federalists and privacy

The Federalist Society will be discussing cell tower data and privacy this Friday.  I will be debating the Florida Solicitor General, Amit Agarwal, who was my opponent in the en banc cell tower case of U.S. v. Quartavious Davis.  It's being moderated by Judge Raag Singhal.  Should be fun:

How many innocent people are in federal prison?

Ninth Circuit Judge Alex Kozinski told 60 Minutes that about 1% or over 20,000 innocent people are in federal prison.  "That's a lot of people!" The number is almost definitely higher and yet many federal judges aren't doing as much as Kozinski to check the executive.  And boy do we need a strong judiciary right now with AG Sessions.

We should have our U.S. Attorney nominee this week.  It will be interesting to see if that person is willing to stand up to Trump/Sessions or whether they will go back to the old ways where there is limited discovery, no exhibit lists, etc. etc.

It appears that in the Ft. Lauderdale shooting case that the prosecution is handing over all of the evidence.  From Paula McMahon:

 Prosecutors handling the case against a man accused of fatally shooting five people and wounding six others at Fort Lauderdale’s international airport are still turning over massive amounts of evidence to the defense, they said in court on Friday.
In the coming weeks, they plan to hand over electronic evidence from computers and phones used by Esteban Santiago before the Jan. 6 mass shooting.
Both sides said they are still interviewing numerous potential witnesses who may have information about the shooting and Santiago’s state of mind.
The defense team, from the Federal Public Defender’s office, said Santiago, 27, is continuing to take medication for schizophrenia and schizoaffective disorder. They said his condition appears to have stabilized and he remains legally competent to stand trial.

It also appears that Haitian coup leader Guy Philippe will plead guilty today.

Dave Barry to speak at the District's Bench & Bar conference

It looks like a good conference, with lots of our judges speaking and participating. It's Friday May 12 and there are interesting panels. It should be revealing to hear what the judges have to say about topics like criminal sentencing and legal writing. And Dave Barry is always great.

Melgen trial winding down

Dr. Salomon Melgen's trial is winding down... It's in week 7 and closing arguments are expected next week. From the AP:

The Medicare fraud trial of a prominent Florida eye doctor tied to corruption charges against New Jersey Democratic Sen. Bob Menendez wound toward its conclusion Tuesday with his lawyers portraying him as an innovative physician who didn't give up on his hard-to-treat patients.

Dr. Salomon Melgen is charged with 76 counts for allegedly stealing up to $105 million from Medicare between 2008 and 2013 by performing useless tests and procedures on elderly and disabled patients.

But Dr. Dana Deupree, testifying Tuesday for the defense, disagreed with the prosecution's contention. Going through numerous patient records, he testified that Melgen's treatments may have been the only hope many patients had for saving their sight. The Clearwater, Florida, ophthalmologist said that although some of the tests performed by Melgen and his staff could have been done better and that he might have performed different procedures, Melgen's work was medically sound.

Deupree, who is expected to be the final defense witness, testified that Melgen's attorneys have paid him $135,000 over several years to consult on this case and prior civil lawsuits.

What's next for Trump and the Judiciary?

Justice Gorsuch takes his seat today on the Supreme Court.  But there are still a ton of vacancies around the country at the District and Circuit levels (as well as U.S. Attorney positions).  David Lat at Above the Law takes a look at what's going to be happening:

The main potential stumbling block to progress on lower-court nominees: “blue slips.” As explained by prominent conservative commentator Hugh Hewitt in the Washington Post:

The blue slip is simply the piece of paper that is sent to the senators from the home state of every judicial nominee. If a senator has no objection to the nominee, the blue slip (so named for the color of the paper) is sent back to the Judiciary Committee chairman with an indication of approval. If the senator objects, the paper is either sent back indicating disapproval or not returned at all.

Under current Senate practice, if the blue slip isn’t returned, the nominee doesn’t move forward. Hugh Hewitt isn’t a fan of this de facto veto power enjoyed by home-state senators; he condemns it as “simply and obviously deeply anti-democratic,” and wants Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) to, well, give blue slips the nuclear treatment.

Senator Grassley recently told Roll Call that his Committee remains “committed to” current blue-slip practice, but noted that blue slips aren’t sacrosanct. This strikes me as totally reasonable: blue slips can be honored for now, and used by senators to stop truly unqualified nominees. But if the Democrats abuse blue slips by using them to stop qualified nominees whose ideology they just don’t like — basically what Republicans did to the eminently qualified Merrick Garland, and what Democrats tried to do to the eminently qualified Neil Gorsuch — then it might be time to shred the blue slip.

So who is going to be the next U.S. Attorney

This Politico article by Marc Caputo says the favorites are John Couriel and Jose Felix "Pepi" Diaz, with Jon Sale very much still in the mix.  The article does not mention that Sale has Rudy Guliani's support as well as strong national political support:

Two young Cuban-American Republicans from Miami are leading contenders to be South Florida’s top federal prosecutor in what, sources tell POLITICO, is one of the most important federal jurisdictions to Donald Trump because it covers his home away from the White House, Mar-a-Lago.
Both state Rep. Jose Felix "Pepi" Diaz, 37, and John Couriel, 39, have interviewed with the Justice Department and were recommended, along with longtime attorney Jon Sale, for the Southern District of Florida U.S. Attorney post by Florida Sen. Marco Rubio, said sources familiar with the process. They say Trump, who has allowed too many federal vacancies to remain open, wants to make a choice soon.
Diaz is seen by some as a slight favorite because he has had a personal relationship with the president since 2006 when he was a contestant on Trump’s TV show, “The Apprentice.”
But others point out that Couriel has a strong backer in Arkansas Sen. Tom Cotton, Couriel’s longtime friend and old Harvard classmate who was an ally of U.S. Attorney General Jeff Sessions when he served as Alabama senator. He has Federalist Society and top administration lawyers advocating for him.

Roy Altman also emerged as a leading candidate -- he was interviewed today in DC.

This is a pretty important post for Trump considering how much time he and his colleagues spend down here.  Many have said that he has taken a personal interest in who is going to get the gig. Good luck to all.

Willy Falcon's brother arrested in Orlando after 26 years

Jim Defede broke the story yesterday about one of the original Cocaine Cowboys being caught after 26 years on the lam.  The Willy and Sal saga is one of the best Miami stories around. Defede covered it 26 years ago and has some great pictures and memories in his story.

The story is so good that filmmakers Billy Corben and Alfred Spellman are currently making the next installment of Cocaine Cowboys to tell the Willy Falcon and Sal Magluta story called Los Muchachos.

The Herald has more about the arrest:

“He is the last of the Cocaine Cowboys,” Barry Golden, a spokesman for the U.S. Marshals Service in Miami, said late Wednesday.
Deputy marshals nabbed Gustavo Falcon and his wife, Amelia, at an intersection in Kissimmee after they had taken a 40-mile bike ride.
Gustavo Falcon had obtained fake driver’s licenses for himself, his wife and their two grown children, using Miami addresses, Golden said. The parents went by the name of Luis Reiss and Maria Reiss, he added.
The marshals caught a break in 2013 when Gustavo Falcon got into a car accident in the Orlando area and used his fake ID with the Miami address. That led the marshals to trace him to his South Florida history.
Gustavo Falcon and his family had been renting a Kissimmee home, which the marshals had under surveillance. They had been living in the Orlando area since 1999, which Golden said surprised the marshals because they had believed Gustavo Falcon was hiding in Mexico or Colombia all these years.

I wonder if some of the younger lawyers in the District know about the case and all of the craziness fro the 90s.  Some background from the Herald:

“Willie” Falcon and his partner, Salvador “Sal” Magluta, were recognized as kingpins among the legendary Cocaine Cowboys who turned South Florida into a violent hub of drug trafficking in the 1980s. The pair used their speedboats not only for ocean racing, but also to haul loads of cocaine smuggled from Colombian through the Caribbean to the shores of Miami.

In 1991, a federal indictment charged the two Falcon brothers and Magluta, a Miami High classmate of Willie Falcon, and several others with smuggling 75 tons of cocaine into the United States between 1978 and 1991. The partners, known as “The Boys,” grew up in Miami as part of the Cuban American community.

In 1996, Willie Falcon and Magluta were acquitted of the charges, thought it was later discovered they bought off witnesses and at least one jury member.

Magluta was retried and convicted of drug-related money laundering charges in 2002. He was sentenced to 205 years in prison, which was reduced to 195 years in 2006.

After his partner’s retrial, Willie Falcon struck a plea deal in 2003 with Miami federal prosecutors Pat Sullivan and Michael Davis on similar money laundering charges. Falcon, sentenced to 20 years in prison, is scheduled to be released in June. 

News & Notes

1. Go Heat!

2. Dave Ovalle used an emoji in the lede to this article about the Instagram trial before Judge Seitz, which resulted in a guilty verdict: "Jurors did not ♥ Cuban Harry’s Instagram defense." You'll only see it in the online version as the paper can't print it. Hilarious.

3. “Tom Davis is morally corrupt. He’s a womanizer, a bad husband, and he stole money from a charity he ran.” That was prosecutor Dan Goldman in his closing argument about his star witness, who testified against William Walters in this fascinating insider trading case. From the NYT:

In the end, though, it was the power of the insider trading narrative, which is so appealing to jurors, that helped convict Mr. Walters, known as Billy, on multiple counts of securities and wire fraud. His trades resulted in gains and losses avoided of about $43 million, making it one of the largest prosecutions ever.

Among those whose names came up at trial was Phil Mickelson, a World Golf Hall of Fame member who repaid a little over $1 million to the Securities and Exchange Commission for trading on information he received from Mr. Walters about Dean Foods. Mr. Mickelson was not charged with any wrongdoing, although it came out during trial that he would avoid testifying by asserting his Fifth Amendment privilege against self-incrimination.

Another name that surfaced briefly was Carl C. Icahn, the activist investor who is an unpaid adviser to President Trump. Prosecutors sought permission during the trial to introduce evidence that Mr. Walters traded on information he received about Mr. Icahn’s investments to show a general proclivity to use confidential information, but that never came to pass.

The key witness in the case was Thomas C. Davis, a former chairman of the board of Dean Foods who also worked as a consultant in an activist campaign involving Darden Restaurants. He admitted giving inside information about both companies to Mr. Walters, but this was far from a simple case of an insider making a mistake by tipping a friend.

Mr. Walters helped arrange loans of nearly $1 million to Mr. Davis, who had financial problems and never repaid the full amount he owed. Mr. Davis said that he innocently gave Mr. Walters information at first, but over time became a “virtual conduit” about corporate developments.

Their relationship developed to the point, Mr. Davis testified, that Mr. Walters gave him a prepaid cellphone that was nicknamed the “Bat Phone” over which they communicated in code about companies, such as referring to Dean Foods as the Dallas Cowboys.

4. How Appealing has now been around for 15 years. It was the legal blog that really started it all. Howard Bashman reflects on it here:

Let me begin with the favorable ­developments that I have observed over the past 15 years in the ability to access and cover appellate court rulings and developments. Today it is very easy to visit the websites of each of the U.S. courts of appeals and access freely and in a timely manner the published and unpublished decisions that those courts have issued. Ten of those 12 federal appellate courts provide free access online to oral ­argument ­recordings, and soon that number will increase to 11, with the U.S. Court of Appeals for the Tenth Circuit remaining as the lone holdout. The Ninth Circuit live streams video of its oral arguments on YouTube, and our local federal appellate court, the Third Circuit, has recently begun posting the video of certain oral arguments online.
Fifteen years ago, none of the federal appellate courts was providing oral argument audio or video online. Advances in technology, including improvement in the speed with which one can access large files over the internet and a vast decrease in the cost of electronic storage capacity, have made it feasible to allow for the widespread availability of oral argument audio online. In fact, earlier this year, many thousands listened live online, over the radio, and via cable news channels to the Ninth Circuit's oral argument of Washington state's ­challenge to President Donald Trump's first executive order imposing travel restrictions on those seeking to enter the United States from various countries.
Similarly, now in 2017 we can access online from the U.S. Supreme Court's own website that court's opinions and orders only moments after they are released to the news media physically present at the court's building in Washington, D.C. Transcripts of U.S. Supreme Court oral arguments are available free of charge from that court's website the same day that the arguments occurred. And on Friday afternoons of oral argument weeks, the U.S. Supreme Court posts online the audio files of the cases orally argued that week.

Judges unite!

It's time for the judiciary to stand up because it looks like the executive branch is getting ready to unleash the War on Drugs, Part II.  From the Washington Post:

Sessions has yet to announce specific policy changes, but Cook’s new perch speaks volumes about where the Justice Department is headed.

Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.

Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.

“Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”

Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.

“They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).

When the War on Drugs started in the 80s, appellate judges mostly rubber-stamped sentences and convictions, and district courts gave prosecutors free reign. We've seen the opposite trend recently, with judges more likely to go below the guidelines and courts of appeals more likely (slightly) to wade into criminal issues. Some of this, of course, has to do with the changes in the law and the changes in administration. But it's in times like these where the judiciary is sorely needed to fulfill its role as a check on the executive. Let's see what happens.

Meantime, in our District, one fellow asked for the max sentence so he could get medical care in prison. This put Judge Cohn in a tricky situation. From Paula McMahon:

Though the judge and Brown said they did not want to reward Peak by giving him what he wanted, Brown said they were in a bind:

“For him to not get what he wants means he’d get less time in prison and that doesn’t seem right either.”

Judge Cohn said he believed Peak had other options, including Medicaid.

Brown said that would have “required a lot more effort than Mr. Peak is willing to put in.”

The judge made it very clear that he took a dim view of the whole escapade. He paused for several minutes before announcing his compromise decision.

Based on Peak’s long criminal history and his most recent offense, Cohn said he had decided to impose the maximum punishment recommended by sentencing guidelines: Five years and three months in federal prison.

But Peak wasn’t getting everything his way.

Judge Cohn routinely approves requests by prisoners that he recommend a specific prison. But he rejected Peak’s request that he recommend sending him back to the prison medical center in Missouri. The judge said it was up to the Bureau of Prisons to pick an appropriate placement — not Peak.

News & Notes

1.  Akerman lawyer and Mignonette owner Ryan Roman (along with good guy Danny Serfer) had a lot of fun with Munch Madness, making it to the Finals against Flanigans. Here's the Herald piece:

Co-owners Ryan Roman and chef Danny Serfer decided to visit every Flanigan’s, from Kendall to Stuart, all in one day — a 13 1/2 hour road trip on April 1, and no, it wasn’t an April Fool’s joke. They posted a picture on Instagram and Twitter from each location, eating their way down the east coast of Florida. They chronicled their trip with the hash tags #YourBiggestFlans and #FlanClub.

2.  Here's a nice piece about Bankruptcy Judge Jay Cristol:

The life and career of A. Jay Cristol has been full of ups and downs, but that’s not surprising for a pilot with seven decades of flying experience.
In fact, to speak with Judge Cristol of the U.S. Bankruptcy Court for the Southern District of Florida, it’s clear there were a lot more ups than downs.
He’s not only been a Navy aviator and a jurist, but he’s also a scholar, teacher and philanthropist.

3.  Many of you sent me this piece by Judge Kopf about his observations about criminal defense lawyers (thanks for sending it!).  It's a fun read.  Many Miami CDLs won't like this one:

 If you became a criminal defense lawyer because you like Rolex watches, then you are an asshole.

RIP James C. Hill

Eleventh Circuit Judge James Hill passed away last Friday at 93.  Here's the 11th Circuit's memoriam page:

James Clinkscales Hill, a senior judge on the 11th Circuit Court of Appeals, died on March 31, 2017 in Stuart, FL. He was 93. Born in Darlington, SC on Jan. 8, 1924, Hill attended the University of South

Caro lina for three years before joining the Eighth Air Force in England during World War II, serving in the 390th Bomb Group as a cryptographer. After the war, he entered Emory University Law School,

graduating in 1948 and joining the Atlanta firm of Smythe Gambrell. He founded Hurt, Hill andRichardson in 1963 and worked primarily as a defense trial lawyer until he was appointed a federaldistrict judge in 1974 by President Richard Nixon. President Gerald Ford elevated Hill to what was then the Fifth Circuit in 1976. In 1946, he  married Mary Black of Simpsonville, SC, then a chemist with the Food and Drug Administration who went on to a career dancing and teaching ballet in Atlanta. Mary and Jim were active in Atlanta's cultural, legal, political and social scene for the next 45 years. Many weekends were spent in their houseboat on Lake Lanier. Every April meant a trip to the Masters. World travelers, they went far beyond the usual tourist destinations -

climbing up Kilimanjaro, rafting down the Grand Canyon, trekking in the Himalayas, cruising on the Yangtze, sailing along the Nile --visiting everycontinent but Antarctica. For some years, Jim flew his own Beechcraft Bonanza and then learned to scuba dive. A dedicated golfer who played Augusta National and St. Andrews, he recorded three holes

in-one. Two of those came at the Golf Club of Amelia Island, FL where Jim and Mary moved in 1991 after he took senior status on the court, maintaining chambers in Jacksonville and living on the ocean. Jim,

who celebrated his 80th birthday with a parachute jump, heard cases until after his 90th. Among his many honors was membership in the American College of Trial Lawyers. In Atlanta, Jim and Mary were

members of Wieuca Road and Northside Drive Baptist Churches, joining the Amelia Plantation Chapelwhen they moved there. Services will be held there on Saturday, April 8 at 11 a.m. Jim's ashes will be

placed in the Chapel's columbarium next to those of Mary who died in 2010. He is survived by his sister Jean Ballentine of Mt. Pleasant, SC; his sons, James C. Hill, Jr. (Dorothy) of Stuart, FL, and A. Michael Hill

(Patty Dann) of Baltimore, MD; seven grandchildren and six great -grandchildren. Memorial contributions may be made to the Judge James C. Hill scholarship at Emory University Law School.

Instagram trial

Oh, this is too fun. David Ovalle covers the Judge Seitz trial with lots of funny Instagram pictures and arguments:

"The heater would be a reference to the AK47 on the seat there,” U.S. Homeland Security Agent Kevin Selent testified.

Garcia’s trial began Tuesday with digital era evidence: prosecutors pored over his Instagram account, which they argue confirms he was a big-time doper, selling weed, Xanax and the potent cough syrup drink known as “lean,” “sizzurp” or “drank.”

Jurors will have to decide whether Garcia was doing real business or just image-building on social media – his lawyers insist the 26-year-old supposed music producer was more addict than kingpin, a wannabe hanging with celebrities.

“On Instagram, Harrison was a baller, if you will, taking photos with Chris Brown and Lil’ Wayne,” lawyer Percy Martinez told jurors in opening statements. “In real life, he was a big kid with kids of his own.”

Should Dems oppose Gorsuch

Judge Nancy Gertner says he's extreme.  But of all the picks that Trump could make, he's seems pretty moderate to me.  Here's Gertner:

He sounds so judicial. He talks about neutrality, raising plain vanilla issues about deference to the expertise of administrative agencies. It is boring, hardly likely to engender indignation. He says his decisions are required by the law — not affected by his own background. He is Judge Neil Gorsuch and he may soon be on the Supreme Court. Don’t be fooled. His approach is not neutral, not required by the law, and far out of the mainstream. Quite apart from social issues like abortion or gay rights, his approach could gut health and safety and antidiscrimination laws.

Back to Blogging

Sorry the blogging has been slow for the past 3 weeks.  My partner, Margot Moss, and I were in Frankfort, KY trying a 3-week federal fraud case.  But we're back, just in time for the Gorsuch vote.  But strangely, the ABA will have no role going forward in vetting judges. 

Meantime, closer to home, I checked the 11th Circuit for any new criminal opinions and we have just one published opinion from that time.  We did get an order granting en banc oral argument in U.S. v. Stein.  That was the case that Judge Jordan concurred (with Judge Pryor) and asked for en banc argument:

We are bound by our decision in Mays v. United States, 763 F.2d 1295, 1297 (11th Cir. 1985), a summary judgment case holding that self-serving statements in a taxpayer’s affidavit, without more, are insufficient to genuinely dispute the presumption that the government’s tax assessment is correct. I therefore reluctantly agree that we must affirm the district court’s grant of summary judgment.
I write separately, however, because the cases upon which Mays relies arise in the post-trial context, where the standard of review is much more deferential than at the summary judgment stage. The principle articulated in Mays has no place in a summary judgment posture. And I believe that the single precedent supporting Mays’ analytical leap, Heyman v. United States, 497 F.2d 121 (5th Cir. 1974), was itself wrongly decided.

Pleading of the year before Judge Ungaro

Oh this Webzilla pleading "Six Ways Buzzfeed has misled the Court (Number Two will amaze you) ... And a picture of a Kitten" is good.  Very good:

"In a somewhat remarkable Motion to Dismiss, Plaintiffs Buzzfeed, Inc. (“Buzzfeed”) and Ben Smith (“Mr. Smith”) intimate that their ties to Florida are so sparse that, collectively, they can barely find Florida on a map and that, as a result, the present case should be dismissed for lack of jurisdiction or transferred to the Southern District of New York," Gubarev's lawyers wrote. 

News & Notes

1. The Miami Herald covers Willy Ferrer's move to H&K here.

2. It's a busy criminal justice week in the Supreme Court.  SCOTUSBlog summarizes them this way:

Lee v. United States, No. 16-327, to be argued March 28, 2017

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

Argument preview: Immigration, ineffective assistance and plea bargaining

Turner v. United States, No. 15-1503 to be argued March 29, 2017

Issue: Whether the petitioners' convictions must be set aside under Brady v. Maryland.

Honeycutt v. United States, No. 16-142 to be argued March 29, 2017

Issue: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.

Argument preview: Can a conspiracy defendant be ordered to forfeit proceeds he never obtained?

3.  Amy Howe covered the Lee argument here.  From the intro:

This morning the Supreme Court heard oral argument in the case of Jae Lee, a Korean immigrant who was charged with possession of ecstasy with intent to distribute it. Lee accepted a plea bargain after his attorney told him that he would not be deported. That advice turned out to be, as Justice Elena Kagan put it today, “supremely deficient”: In addition to the year and a day in prison to which he was sentenced, Lee’s conviction also carried with it the penalty of mandatory deportation. Lee asked a federal court to vacate his conviction, but the U.S. Court of Appeals for the 6th Circuit declined to do so. It reasoned that the evidence against Lee was so overwhelming that, even if he had received bad advice from his attorney that prompted him to plead guilty, Lee could not have suffered the kind of harm from that bad advice that would render his conviction unconstitutional. The justices today seemed more sympathetic to Lee than did the 6th Circuit, although it is not clear whether he can get the five votes needed to reverse the lower court’s ruling.

Fane Lozman wants back in the Supreme Court

You all remember him -- he's the guy who won the floating home case.  Well, he's back.  From Curt Anderson:

Four years ago, Fane Lozman won an improbable longshot victory when the U.S. Supreme Court agreed with him that his floating home was a house, not a vessel subject to seizure by a Florida city.

The justices set a new national legal standard: Not everything that floats is a boat.

It was far from certain that the nation's highest court would even take his case, and the verdict in January 2013 seemed a resounding victory for the little guy in battle with local officials. Now Lozman is asking the justices to enforce their ruling by forcing the city pay him legal fees and reimburse him for the home's value after it was seized and destroyed.

Lozman's 60-by-12-foot floating home had no engines, sails or rudder. It had to be towed to a Riviera Beach marina where Lozman took up residence in 2006 before becoming embroiled in a fight with that Florida city over its plans to turn the marina over to a developer. Lozman said the city's actions were in retaliation for his vocal opposition.

The city sought to evict him and, when that failed, sued under maritime law in federal court to have the floating home seized as a vessel. After a federal judge sided with the city in 2010, it had the home destroyed - launching the legal battle all the way to the Supreme Court.

Lozman contends in new filings that the city should reimburse him the estimated $165,000 value of the floating home destroyed, plus $200,000 in legal fees. The same district judge and appeals court whose rulings were overturned by the Supreme Court justices have essentially told Lozman to take a long walk on a short pier.

To Lozman, the rulings rejecting reimbursement fly in the face of the original Supreme Court decision, forcing him to return for a second longshot.

How would you answer this question?

While Gorsuch is being grilled on these important questions, Labor nominee Alex Acosta is quietly having his hearings.  From the Miami Herald:

“Why cut a non-prosecution deal despite your staff saying you shouldn’t?” Kaine asked. “That is not accurate,” Acosta responded, disputing reports that in cutting the plea deal with Epstein, he rejected the advice of his senior lawyers when he served as U.S. attorney for Southern Florida. “It was a broadly held decision,” Acosta said. The exchange was one of the more feisty moments in an otherwise relatively smooth hearing that Democrats and Republicans alike say will lead to easy confirmation for Trump’s second choice to lead the Labor Department. Republican Sen. Marco Rubio of Miami, a fellow Cuban-American, introduced Acosta to the Senate Labor Committee. “He is a brilliant legal mind, someone with deep knowledge of labor issues, and a proven leader,” Rubio said. Sen. Ted Cruz of Texas, like Rubio a 2016 Republican presidential candidate, said he and Acosta had bonded over the years as the sons of Cuban-American refugees. “Alex is a surprisingly good poker player and not nearly as good of a squash player,” Cruz said to laughter. The Senate in bipartisan votes previously confirmed Acosta for three positions: the prosecutor’s post in Miami, a senior Justice Department job and what became an eight-month stint on the National Labor Relations Board. And labor unions have already told their allies on the Hill that Acosta is a better choice than Trump’s first pick California fast food executive Andy Puzder.

Shaniek Maynard is your new Ft. Pierce Magistrate

It's not official yet because she is undergoing her FBI background check.  But that should happen soon.  She grew up in Ft. Pierce and went to Yale Law School.  Seems like an excellent choice.

"Respectfully, and reluctantly, I dissent."

That was Judge Jordan, dissenting in a death penalty case (Madison vs. Alabama DOC) in which Judge Martin writes for the majority (Wilson joined) that Vernon Madison is incompetent and therefore cannot be executed. Jordan says that's not the place of a federal court on a habeas petition to make that determination (even though he agrees with the majority that Madison is incompetent).

From the majority:

Because the Alabama trial court unreasonably determined the facts relevant to Mr. Madison’s claim and unreasonably applied controlling federal law, we do not owe the state court’s finding that Mr. Madison is competent to be executed deference under AEDPA.

From the dissent:

After reviewing the record, I believe that Vernon Madison is currently incompetent. I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

Baseball case ends in convictions

It was a very long trial and today the jury found both Bart Hernandez and Julio Estrada guilty. From the AP:

MIAMI (AP) — A Miami jury on Wednesday convicted a Florida sports agent and a baseball trainer on charges they smuggled Cuban baseball players to the U.S. in search of big profits from professional free agent contracts.

The verdict came after jurors heard about six weeks of testimony in the trial of Bartolo Hernandez and Julio Estrada, who were indicted on conspiracy and alien smuggling charges for an operation that began in 2009 and involved a number of high-profile Major League Baseball players.

Trial evidence showed an existing Cuban smuggling operation that brought people from the communist-run island to Mexico became the platform in 2009 for the much more lucrative trade in elite ballplayers. People involved in that operation testified it was ultimately overseen by Hernandez and Estrada.

The players would be whisked from Cuba to Mexico or Haiti in a speedboat, sign papers claiming residency in their new country and eventually be cleared to sign with MLB teams. Prosecutors showed jurors how many of those documents contained false information, such as made-up jobs for players, and some travel documents were forged.

In one of the trial's memorable moments, Chicago White Sox star Jose Abreu testified that he ate a piece of his phony Haitian passport while flying to the U.S. in 2013 because he feared repercussions if he landed in Miami with a fake document. Abreu soon after signed a $68 million deal with Chicago.

Prosecutors behaving badly

This time it's in the Salomon Melgen trial in WPB, where the prosecutors elicited false testimony about uncharged conduct.  Although Judge Marra struck the testimony and instructed the jury, the defense's motion for mistrial was denied.  From the PBP:

The judge in Palm Beach County eye doctor Salomon Melgen’s Medicare fraud trial on Monday threw out the testimony of a witness who wrongfully claimed the doctor had billed her for a surgery he never performed.

Attorneys for Melgen had asked U.S. District Judge Kenneth Marra to declare a mistrial over the testimony that came up Thursday during the first day of testimony in a trial that is expected to last through next month.

Also Monday, federal jurors heard testimony from one of the FBI agents who pored over thousands of patient records and photographs from Melgen’s practice going back to the 1990s, and began hearing from an expert on macular degeneration — an eye illness that federal prosecutors say Melgen falsely diagnosed and treated in scores of patients at his offices in West Palm Beach, Delray Beach and Port St. Lucie to collect Medicare payouts of more than $108 million.

Before testimony began for the day, however, defense attorney Matthew Menchel told Marra that he and other defense attorneys for the 62-year-old doctor were completely blindsided by accusations from witnesses Thursday that Melgen had never performed an operation on patient Delores Griffiths for which he billed Medicare.

Menchel said that records showed that Melgen had done the procedure. But even if the allegations were true, Menchel said, federal prosecutors have never claimed in indictments against Melgen that he billed Medicare for procedures he never performed. Menchel said prosecutors were reckless and irresponsible for bringing up the allegations during the trial without prior notice.

“This was completely new, completely different, and completely out of left field,” Menchel said. “That’s like charging someone with robbery and then coming to trial and accusing them of rape.”

Menchel had asked Marra to either declare a mistrial in the case or to throw out the witness testimony. The judge chose the latter, telling jurors that records show the procedure had been done and instructing them to disregard the witness testimony.

NY Times piece on Alex Acosta

Labor nominee Alex Acosta's hearing has been pushed off a few days to allow the chair of the committee to attend a Trump rally.  Acosta will easily be confirmed when the hearing occurs. In the meantime, there have been a bunch of articles about him. Strangely, the Herald and NY Times have done a number of hit pieces on him.  Putting aside that ease with which Acosta will get confirmed, I think it would be a huge mistake for the Democrats to object to his nomination.  He is a fair, really smart, and pragmatic guy, who also has a big heart.  He was a very successful U.S. Attorney, who was extremely involved with the cases (from top to bottom) in the office (unlike many other top prosecutors who focus more on policy and community projects). Here's the nice part from the NY Times piece:

Others, including an immigration advocate and several professors at Florida International University’s law school, say Mr. Acosta is a fair leader who did not let his conservative ideals affect his decisions for the school and who worked hard to recruit, retain and support a diverse student group.
Erik Camayd-Freixas, a Hispanic studies professor at Florida International University, met Mr. Acosta several months before he was tapped to join the university’s law school, in 2009. Mr. Acosta was then the United States attorney for the Southern District of Florida, where his office prosecuted the lobbyist Jack Abramoff, the terrorism suspect Jose Padilla and founders of the Cali drug cartel.
Mr. Camayd-Freixas and several others called on the prosecutor’s office to investigate an immigration raid in Homestead, Fla., where, they claimed, United States Immigration and Customs Enforcement agents had unfairly roughed people up.
“I was very impressed with the way he handled it and his fairness in presenting essentially abuses by Immigration and Customs Enforcement to the Department of Justice for investigation,” Mr. Camayd-Freixas said of Mr. Acosta. “He put together a complaint, and he elevated it.”

Check out this powerful dissent by Judge Rosenbaum

The case is Jameka Evans v. Georgia Regional Hospital. Judge Rosenbaum's powerful dissent start's out this way:

A woman should be a “woman.” She should wear dresses, be subservient to men, and be sexually attracted to only men. If she doesn’t conform to this view of what a woman should be, an employer has every right to fire her. That was the law in 1963—before Congress enacted Title VII of the Civil Rights Act of 1964. But that is not the law now. And the rule that Title VII precludes discrimination on the basis of every stereotype of what a woman supposedly should be—including each of those stated above—has existed since the Supreme Court issued Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded in part by The Civil Rights Act of 1991, Tit. I, § 107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e–2(m)), 28 years ago. Yet even today the panel ignores this clear mandate. To justify its position, the panel invokes 38-year-old precedent—issued ten years before Price Waterhouse necessarily abrogated it—and calls it binding precedent that ties our hands. I respectfully disagree. 

And from the conclusion:

Presidential-Medal-of-Freedom recipient Marlo Thomas has expressed the
sentiment that “[i]n this land, every girl grows to be her own woman.”17 Title VII
codifies the promise that when she does, she will not be discriminated against on
the job, regardless of whether she conforms to what her employer thinks a woman
should be. Because the panel does not read Title VII to fulfill that promise, I
respectfully dissent.

The 2-1 decision is authored by District Judge Jose Martinez and joined by William Pryor (who also writes a concurring opinion).  Slate covers the opinion here:

On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11th Circuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.

Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII. Although that statute does not explicitly outlaw anti-LGBTQ discrimination, it does bar “sex discrimination,” including sex stereotyping. Evans argued that this prohibition bars employers from discriminating on the basis of gender presentation and sexual orientation.

Salomon Melgen trial starts

The AP had a nice story about opening statements:

A prominent Florida eye doctor tied to a U.S. senator's alleged corruption built much of his fortune by defrauding Medicare and instilling false hopes in some patients, a federal prosecutor told a jury Thursday.
Salomon Melgen stole millions from Medicare between 2008 and 2013 by falsely diagnosing patients and by performing unnecessary tests and treatments, Assistant U.S. Attorney Carolyn Bell said during her opening statement for Melgen's fraud trial. Melgen and Democratic New Jersey Sen. Bob Menendez face a separate trial in the fall in an alleged bribery case.
"This is a case about a doctor who lied to Medicare for money," Bell told the 12-member panel. He lied about his patients' diagnoses, she said. He lied about the tests he ran, she said. He lied about their prognoses, she said. All of it, she said, aimed at making Melgen rich, as many of these falsely diagnosed and treated patients could net him $72,000 each annually.
Medicare paid Melgen, 62, because it "relied on the integrity of the doctor," she said, but the government's investigation found that in many cases he "lied," using that word or a variation about two dozen times during her address.
Matthew Menchel, Melgin's attorney, countered during his opening that the government's case is built upon viewing Melgen's actions as criminal when they were actually aggressive medicine, legitimate differences of opinions between doctors and honest mistakes.***
"They turned a blind eye to evidence they didn't like," he said.
Many charges relate to patients Melgen said had age-related macular degeneration, one of the leading causes of severe vision loss in people 65 and older. Most ARMD patients have the "dry" variety, which is caused by retinal cells breaking down and cannot be treated. Fewer have the "wet" variety, which involves bleeding beneath the retina. It can be treated by injections.
***
Menchel said other doctors who have looked at Melgen's diagnoses and treatments don't always agree with him, but understand what he was attempting. Other eye doctors sent Melgen their hardest, most desperate patients because they knew of his "cutting edge" treatments that sometimes worked, Menchel said. He said a totally blind person who regains even a flicker of peripheral vision would feel the treatment is worth it.
"Many of Dr. Melgen's patients loved him, not just liked him, because he helped them," Menchel said.
Menchel said Melgen never claimed to test or treat prosthetic eyes, saying those billings were mistakes made by his employees. When those mistakes were pointed out to him, Melgen reimbursed Medicare, Menchel said.

Meantime, it was the ABA White Collar Conference at the Fountainbleu this week.  About 1000 lawyers running around in suits while the beautiful people there were wondering who these aliens were invading their pool party.  Lots of recent former prosecutors, including Willy Ferrer and Matt Axelrod.  I previously covered Ferrer's move to H&K.  Here's the Axelrod story from the NY Times about his departure:

His boss was fired, and in effect, so was he. Now Matthew S. Axelrod is moving on.

The former top deputy to the acting attorney general, Sally Q. Yates, who was dismissed by President Trump in January after refusing to enforce his executive order barring travelers from seven predominantly Muslim countries, Mr. Axelrod is joining a major global law firm, Linklaters.

"Although Otis Redding may have enjoyed wasting time by watching ships roll into the Dock of the Bay,* if he were sitting on Cumberland Island’s Brick-Kiln Dock, he truly would be wasting his time, waiting in vain for ships that would never come."

That was how Judge Rosenbaum started this opinion with the following footnote:

1 STEVE CROPPER & OTIS REDDING, (Sittin’ On) The Dock of the Bay, on THE DOCK OF THE BAY (Volt/Atco 1968). Redding tragically died in a plane crash in December 1967, just two days after he finished recording “(Sittin’ On) The Dock of the Bay,” so the song was released posthumously on January 8, 1968. Marc Myers, Then I Watch ‘Em Roll Away Again, WALL ST. J. (Jan. 3, 2013 6:20 PM), http://www.wsj.com/articles/SB10001424127887323320404578213 633398825300. It later won the 1968 Grammy Awards for the Best Rhythm & Blues Male Vocal Performance and the Best Rhythm & Blues Song. RockPopInfo Song Facts: (Sittin’ On) The Dock of the Bay, ROCKPOPINFO, http://www.rockpopinfo.com/songs/sittin-on-the-dock-ofthe-bay--2/song-facts (last visited Aug. 2, 2016).

If the site was last visited on August 2, 2016, it seems that the opinion has been waiting to be published for a while.  What am I missing appellate clerks?

Hat Tip: Stephen Ludovici at Jones Walker

Baseball case moves to defense case

The government has rested after 6 weeks.  Now it's to the defense.  From the AP:

Two Texas Rangers executives testified Tuesday they never discussed bringing Cuban ballplayers to the U.S. illegally with a Florida sports agent on trial for allegedly smuggling players from the communist-governed island.
Rangers General Manager Jon Daniels and assistant GM Mike Daly told a jury they never knew that outfielder Leonys Martin planned to cross the U.S. border in Texas illegally and never talked about it with Martin's agent, Bartolo Hernandez.
"Absolutely not," Daly said under questioning from Hernandez attorney Daniel Rashbaum.

Supreme Court affirms 11th Circuit in Beckles

This was the vagueness challenge to the career offender guideline. Both the defendant and the government agreed that the guideline provision was vague and that the 11th should be reversed.  The Court had to appoint a lawyer to argue the contrary position, and ruled unanimously for that position:  Justice Thomas starts his majority opinion this way:

At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG).   This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness.  Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.