"Respected blog"

"Respected blog"

That's how awesome Sun-Sentinel reporter Paula McMahon described the blog, giving this site credit for breaking the news about Trump's 3 judicial picks, Rudy Ruiz, Rodney Smith, and Roy Altman:

All three have strong links to Miami-Dade County: They are Circuit Judges Rodolfo “Rudy” Ruiz and Rodney Smith, who are serving state judges in Miami-Dade County, and former federal prosecutor Roy Altman, who is now in private practice.
This is the president’s first opportunity to shape the bench in South Florida for decades to come. But none of the three men, or the other seven candidates, are considered controversial selections, local judges and attorneys said.
White House officials have indicated the president wants to schedule Senate confirmation hearings for the trio. They are not technically nominees yet and will have to pass an extensive background check before they could be formally nominated. All three received official phone calls notifying them they had made the cut, several sources said.

The president had been expected to name all of his choices for five vacancies but has not done so yet. It is unclear why.

It's definitely a changing of the guard here in South Florida, where the new wave of judges, both from Obama and now from Trump, are changing the feel of this Court.  Lee Stapleton talks about this a little bit in her beautiful tribute to Magistrate Judge Bill Turnoff:

From 1982 to 1986, Bill Turnoff presided over the major crimes unit in the U.S. Attorney’s Office for the Southern District of Florida — the busiest section in the busiest office in the country. Every day, full-tilt boogie.

In 1984, after few years as an associate at a big firm, I decided I needed more adventure and more experience — after all, that’s why I’d come to Miami in the first place despite dire warnings from classmates and others that Miami was a dangerous place. U.S. District Judge Kathleen Williams, then just Kathy Williams, and I started at “The Office” in June 1984.

After a mandatory stint in appeals, I went to major crimes. My chief, Bill Turnoff, was from Philadelphia. You only need to hear one sentence out of his mouth to pick up the accent. A Cornell law school grad, he sat in a smallish corner office on the seventh floor. Mr. Potato Head sat on his desk. The air was redolent of pipe tobacco, and his door was always open.

BT ran his crew with military precision. He had to — every day brought new waves of events and new waves of arrests. There weren’t many of us, and the Department of Justice had to send extra pairs of hands, known as “Bucket Brigaders.”

Despite the chaos outside our doors, major crimes was run as a quality operation, with standards as exacting as any white-shoe law firm. Bill worked long hours, reading our indictments, affidavits for search warrants, pleadings, sentencing memos — most pieces of paper that were filed with the court. He was exacting. No editor at a national newspaper or magazine could have had higher standards than Bill. If he found a comma out of place, a typo or a grammatical error, he circled it in red and brought it back to the assistant U.S. attorney who had presented the defective document to him. No comment, just handed back to the person for as many drafts as necessary for perfection. I was a former newspaper reporter used to editors and editing, but because I so adored the guy and didn’t want to disappoint him, I proofed everything multiple times before presenting it to Bill.

Federal prosecutors go to court. In those days, pretty much every day we made the trek from 155 S. Miami Ave. to the federal courthouse. It was a bitch to do that in the summer, especially in a suit and panty hose. Bill expected his prosecutors, even rookies, to be TV-quality lawyers. It was up to the more senior AUSAs to keep an eye on the newbies. That being said, with so many cases, there was only so much time to babysit junior AUSAs. There was a strong on-the-job-training element to learning how to try a case. We were supposed to have a senior person with us for our first two trials. I got through my first one thanks to Mark Schnapp, But an hour into my second trial, the senior AUSA had to leave to go to another courtroom. I have come to believe that “training” is no substitute for “doing.”

BREAKING—RUDY RUIZ TO BE NOMINATED FOR DISTRICT JUDGESHIP — UPDATED

BREAKING — RUDY RUIZ TO BE NOMINATED FOR DISTRICT JUDGESHIP; UPDATED: RODNEY SMITH AND ROY ALTMAN ALSO TO BE NOMINATED

Multiple sources have confirmed that Rudy Ruiz has been informed that he will be nominated by President Trump for one of the 5 open district court seats for the Southern District of Florida. Congrats to Judge Ruiz, who currently sits as a state trial judge in Miami-Dade County. Ruiz went to Georgetown Law and then clerked for Judge Moreno. Like Moreno, Ruiz started as a County Court judge, then became a Circuit Court Judge and now moves over to the federal bench.

UPDATE — I have heard that Trump has also informed two others that they will be nominated and that he will “hold over” the last two spots. I do not know whether that means that 2 people from the current list will get those slots or whether they will be opened back up.

SECOND UPDATE — I have heard that the other two names are Roy Altman and Rodney Smith. This is not confirmed yet. If you have any information on this, please email me. dmarkus at markuslaw dot coM

THIRD UPDATE — Two sources have confirmed these other two names. I feel pretty good that these are the three names.

Tick Tock...

President Trump unveiled another wave of judicial selections today, but still nothing for the 5 open slots here in the Southern District of Florida.

Who was Justice Ginsburg talking about here?

Who was Justice Ginsburg talking about here?

"I respect all my colleagues and genuinely like most of them."

Hahaha. That was her speaking at Columbia this weekend.

In a very different Colombia, the Miami Herald had this news about the prison barring American lawyers from entering:

In effect, all foreign lawyers, including U.S. attorneys, cannot enter La Picota anymore as lawyers — only as social visitors. After the [Joaquin] Perez scandal, it’s probably going to get worse. Colombia’s prison spokesman insisted no foreign lawyers were being barred from La Picota.

What prompted the change in La Picota’s policy? About a year ago, a scandal erupted when an American attorney entered the prison, bribed guards and negotiated a huge payment to have a client put on a list that gives amnesty to members of a left-wing guerrilla group, the FARC, as part of its peace accord with the government.

Other Miami lawyers who compete with Perez for high-profile drug trafficking clients said Colombian prison officials have made visiting their clients intolerable.

Great American William Turnoff to be honored

The United States District Court for the Southern District of Florida is hosting a reception honoring Magistrate Judge William C. Turnoff for his 32 years of distinguished judicial service. The reception will be held at the Wilkie D. Ferguson, Jr. United States Courthouse, Miami, on Thursday, February 8, 2018, from 4:00 - 6:00 p.m.

Judge Turnoff is a great American.

Judicial candidates being interviewed this week in DC

A number of sources have told me that all 10 judicial candidates for the 5 slots will be interviewed by the White House this week.  Hopefully we will have an answer shortly on who will be selected.  As a reminder, the 10 candidates are:

Miami-Dade Circuit Judges Antonio Arzola, Peter Lopez, Rodolfo ‘Rudy’ Ruiz, Rodney Smith and John Thornton;
Acting U.S. Attorney Benjamin Greenberg;
Broward Circuit Judges David Haimes and Raag Singhal; and
private attorneys Roy Altman and Melissa Visconti.

Author of Nunes memo has ties to SDFLA

The author of the Nunes memo, Kash Patel, has ties to SDFLA.  He was an assistant state public defender in Miami.  Then, an assistant federal defender.  Then he moved to Washington, DC to become a DOJ terrorism prosecutor. 

The attacks on the FBI, though, don't seem to be getting a lot of traction from the memo.  This seems like a much stronger issue for those who would attack the FBI.  From the NY Times:

For more than a year, an F.B.I. inquiry into allegations that Lawrence G. Nassar, a respected sports doctor, had molested three elite teenage gymnasts followed a plodding pace as it moved back and forth among agents in three cities. The accumulating information included instructional videos of the doctor’s unusual treatment methods, showing his ungloved hands working about the private areas of girls lying facedown on tables.

But as the inquiry moved with little evident urgency, a cost was being paid. The New York Times has identified at least 40 girls and women who say that Dr. Nassar molested them between July 2015, when he first fell under F.B.I. scrutiny, and September 2016, when he was exposed by an Indianapolis Star investigation. Some are among the youngest of the now-convicted predator’s many accusers — 265, and counting.

The three alleged victims then at the center of the F.B.I.’s inquiry were world-class athletes; two were Olympic gold medalists. Nearly a year passed before agents interviewed two of the young women.

Reality Winner's detention upheld

Reality Winner's detention upheld by the 11th Circuit.  From the Washington Times:

The 11th Circuit Court of Appeals affirmed Wednesday a district court’s order keeping accused National Security Agency leaker Reality Winner behind bars pending trial.
A federal appellate panel ruled 3-0 to uphold a lower court’s ruling detaining Ms. Winner, 26, effectively seeing she remains jailed until her leak case is heard likely later this year.
Ms. Winner was arrested in June 2017 in Augusta, Georgia, and subsequently charged in connection with sharing classified material obtained while employed at Pluribus, an Atlanta-based contracting firm, and ordered held until trial.
Defense attorneys had sought to secure Ms. Winner’s release from jail prior to court proceedings starting, but the 11th Circuit quashed that bid by upholding a lower court’s pretrial detention order, citing the likelihood of the accused fleeing the country.
“[T]he district court did not err in finding by a preponderance that Ms. Winner is a flight risk and that no condition or combination of conditions will reasonably assure her appearance,” the appellate panel wrote in the 5-page ruling affirming the detention order.

Here's the opinion.

Falcon pleads

Gustavo Falcon, on the run for 26 years, pleaded guilty today before Judge Moreno.  He's looking at 11-13 years under his plea agreement and prosecutors won’t charge him (for being a fugitive) or his wife and their two grown children (for hiding him).

Meantime, a naked bank robber was found not guilty yesterday in a bench trial before Chief Judge Michael Moore.  You are probably reading that last sentence a few times... okay, okay -- it wasn't a straight not guilty.  It was a not guilty by reason of insanity.  And the parties agreed.  Here's the Sun-Sentinel coverage by Paula McMahon. I've never seen that before in this District.  Anyone else?

Read more here: http://www.miamiherald.com/news/local/article197809819.html#storylink=cpy

Yikes

From the yikes department, here's the introductory paragraph from Chief Judge Carnes in Winn-Dixie v. Dolgencorp:

After we have remanded a case with specific instructions, attorneys rarely attempt to have the district court defy our mandate. And even if they try it, a district court is seldom misled into that kind of error by them. This is one of those rare cases where the attorneys representing one side successfully urged the district court to act contrary to our mandate. Of course, we reverse that part of its judgment.

More:

Needless to say (or maybe not), a district court cannot amend, alter, or refuse to apply an appellate court’s mandate simply because an attorney persuades the court that the decision giving rise to the mandate is wrong, misguided, or unjust. A district court can, of course, wax eloquent about how wrong the appellate court is, but after the waxing wanes the mandate must be followed.

***

There is no imprecision in those instructions, no room for evasive interpretation, in short, there is no legitimate basis for applying what we said only to a subset of the 41 Florida stores. We don’t know what else we could have said other than, perhaps, “and we really mean it.” Well, we really did mean it. And we still do.

The district court did not do what we instructed it to do because it was led astray by the defendants’ attorneys.

Rant: Bond pending appeal

Rant: Bond pending appeal

Everyone knows the dirty little secret in federal criminal cases -- everything is stacked against the criminal defendant.  That's why so many defendants plead.  Even innocent defendants.  It takes a ton of courage to fight the government because the stakes are impossibly high.

One tactic the government uses against criminal defendants is opposing reasonable bail.  In many cases, the government tries to keep defendants behind bars during pretrial litigation.  But lately, judges have been much better about releasing white collar defendants on bond during pretrial litigation.  This trend has not reached appellate bonds though.

If a defendant is convicted at trial, it is nearly impossible to get an appellate bond -- even for white collar defendants who are not a risk of flight or danger to the community.  This is maddening because defendants who end up prevailing in the court of appeals end up serving time unnecessarily.  And it's not because the law is bad... it's just because there is a culture of denying such motions. 

Yesterday, our firm had a sweet appellate win in the 5th Circuit (we were not the trial lawyers) for a 68-year old doctor who was improperly and unjustly convicted of medicare fraud (here's the opinion).  The conservative court of appeals found that the evidence against her was insufficient.  But her motion for bond pending appeal was denied, so the doctor sat in prison for almost 10 months waiting for the appeal to be decided.  Even though that is relatively quick, she will never get those 10 months back.  In a recent 11th Circuit case, the poor client had to spend 3 years in prison before being vindicated in a published order saying that she was actually innocent. Now, that woman is seeking to be compensated for her time in prison.

There is nothing more sacred than our liberty.  If a person has the courage to stand up to the government and fight the charges, and if they are not a danger to the community or a risk of flight, then courts should be willing to say that they have "close" issues on appeal (which is a pretty low standard) and grant them bond pending appeal.  I'm sure that there are a handful of cases over time where someone has fled on an appellate bond, but I have never seen such a case. The harm in denying such a bond is irreversible if the defendant wins on appeal.  If she loses, then the government has lost nothing.

I'm happy to debate any prosecutor or judge on this issue.  Let me know and we will set up a back and forth on the blog.

Thank you Florida Supreme Court!

Thank you Florida Supreme Court!

That's what two different 11th Circuit panels said last week. Pruco Life Ins. Co v. Wells Fargo Bank, N.A. and Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co. are per curiam decisions returning to the Eleventh Circuit after the Florida Supreme Court answered the certified questions in each case. In both per curiam decisions, the panel explicitly thanked the Florida Supreme Court.

From Pruco: We thank the Florida Supreme Court for its guidance. In light of its response, we AFFIRM the entry of judgment for U.S. Bank as to the Guild policy, Appeal No. 13-15859, District Court No. 1:12-cv-24441-FAM.

From Altman: Given the benefit of this answer to our certified question, we reverse the grant of summary judgment in favor of C&F, vacate the final judgment, and remand this case to the district court for further proceedings. We thank the Florida Supreme Court for accepting, and answering, the certified question.

Thanks to the tipster for this interesting find.  According to him, this is a pretty rare occurrence, but it happened twice in one week before in our appellate court.

CNN covers Key West sting

UPDATE--And in other news, here's some shameless promotion for my daughter who is performing in a professional show, Ride, tonight (Thursday) at 7:30 (and Saturday at 7:30) at Area Stage on US1 in South Miami (the old Riviera movie theatre). Come check it out!



***

CNN covers the Key West sting to "bring down an ISIS-supporting weightlifter" here. The pepper eating seems weird:

Harlem Suarez grabbed a jalapeno pepper from his plate and took a big bite. The heavily tattooed Cuban-American crepe-maker was eating dinner with two new friends, Shariff and Mohammed, at a Denny's in Key West on a warm June night. Suarez wanted to impress them but they laughed instead, joking in Arabic that he seemed suicidal.
"You've got nothing to prove, man," said Mohammed, as Suarez's eyes welled up with tears from the heat of the pepper.
Suarez did have something to prove. He wanted to convince Mohammed and Shariff that he was a devout jihadist with a grand plan to rain hell on Key West.
Never mind that Suarez had tried and failed repeatedly to make contact with ISIS recruiters abroad, according to court documents. He spent most of his downtime lifting weights at the gym and partying at kitschy bars on Duval Street.

Before long he'd be one of only two Americans sentenced to life in prison by the US government for plotting terror attacks on behalf of ISIS.
***
One Facebook user accepted Suarez's friend request because he saw they had a mutual friend. He was alarmed by the images and rhetoric on Suarez's page, so he notified the Palm Beach County Sheriff's Office and gave screen grabs to the FBI. Within weeks of the initial tip from the Facebook friend, the FBI had a surveillance team following Suarez around the clock. At least 20 agents surveilled Suarez each day and sometimes 10 to 20 extra FBI employees were brought in to help keep tabs on him, according to court testimony. Mohammed, one of Suarez's dining companions at Denny's, was a paid FBI informant who specialized in terror cases. Shariff was an undercover agent posing as an ISIS supporter who knew a bomb-maker. They were both wired for sound and video as they joked about spicy peppers at the chain restaurant that calls itself "America's diner," famed for its big breakfasts and epic menu.
Mohammed said, "Eating those jalapenos is a struggle, it's a jihad."
As the three laughed, Shariff praised Suarez, "He said he didn't know any Arabic (but) he knows 'jihad.' "
Suarez didn't know Arabic. Nor did he recognize the name of ISIS' leader, Abu Bakr al-Baghdadi. Mohammed taught him about al-Baghdadi and introduced him to the terror group's handbook, "How to Survive in the West." Mohammed told Suarez he had camera gear and said they should make a recruiting video. The two wrote the script at Burger King and filmed it in a roach-laden room at a Knights Inn in Florida City.

SDFLA is #1!!

We’re #1! The Southern District of Florida is #1 ...

... in health care fraud. According to a just-released report by the Sentencing Commission, our District had 131 health care fraud defendants in 2016. The next closest district, the Eastern District of Michigan, had 40 defendants.


The Top Five Districts Health Care Fraud Offenders FY 2016
Southern District of Florida (N=131)
Eastern District of Michigan (N=40)
Central District of California (N=27)
District of Puerto Rico (N=23)
Southern District of Texas (N=20)

News & Notes

News & Notes

1. The Supreme Court is still open for business, and it was issuing opinions and cert grants this morning.

2. Is Chief Justice Roberts moving towards the center? This BuzzFeed article suggests that he is.

3. The 11th Circuit tossed this lawsuit by a Dolphins' coach against the NFL and Ted Wells.

4. Justice Ginsburg says #MeToo.

Justice Alex Acosta?

Justice Alex Acosta?

Politico has an interesting article this morning that Labor Secretary Alex Acosta may be in line for a federal judgeship. The questions is whether it would be on the 11th Circuit or the Supreme Court:

Business representatives now see these ambitions as possibly driving Acosta’s risk-averse approach to the DOL, even as several of his executive branch counterparts are moving to aggressively disrupt other agencies. A stalled Senate confirmation process for department leadership posts below Acosta has also contributed to the pace.

Whether the White House actually has Acosta on its radar to fill a potential Supreme Court or appellate vacancy is unclear. But Bloomberg Law interviews with those who know the secretary and a review of his public comments dating back to the 1990s demonstrate Acosta’s undeniable passion for the judicial system. What’s more, he is close friends with Leonard Leo, the Federalist Society vice president credited for orchestrating the selections of the last three Republican-appointed Supreme Court justices.

Acosta is “certainly somebody who has a lot of credentials that you would look for in appointing judges,” Ronald Cass, a past chair of two Federalist Society practice groups and former member of the American Bar Association committee that screens judicial appointments, told Bloomberg Law. “He’s got a broad academic background, a broad legal background, he’s somebody who is clearly bright and thoughtful.”

Acosta would make an excellent Judge. I hope this story has legs.

News & Notes

News & Notes

1. Marc Caputo is saying that its Judge Ariana Fajardo's job to lose for U.S. Attorney in the Southern District of Florida:

A Miami family-law judge has taken a major step closer to being the next U.S. Attorney in South Florida now that her leading rival for the post has taken a job with a top Florida lobbying firm with close ties to President Donald Trump.

The behind-the-scenes contest for the job as top prosecutor in the district that encompasses Trump’s so-called “Winter White House” of Mar-a-Lago has raged for about a year and appeared to come down to Miami-Dade Judge Ariana Fajardo Orshan and former state Rep. José Félix Díaz, a former contestant on Trump’s show, “The Apprentice.”
***
Fajardo, backed by both Sen. Marco Rubio and Gov. Rick Scott, was considered for the post after the Trump administration, Rubio and the Justice Department deadlocked on other choices for the post. Soon after her name surfaced, insiders considered her the front-runner for the job.

“With Díaz out, it unclogs the drain,” said one source familiar with the White House’s decision-making over the U.S. attorney post.

Said another: “As long as Judge Fajardo passes her background checks, she should be the next U.S. attorney in South Florida.”

2. Mickey Munday was convicted today. And immediately remanded. No more Cocaine Cowboy interviews... (prior coverage here).

Judge Altonaga orders plaintiff to “certif[y] the pleading has been reviewed and approved by a teacher of the English language — such certification is to be included in the notice of filing the second amended complaint.”

Judge Altonaga orders plaintiff to “certif[y] the pleading has been reviewed and approved by a teacher of the English language — such certification is to be included in the notice of filing the second amended complaint.” (See order here).

OOOOF!

From Judge Altonaga's order:

The Court notes Plaintiff’s proposed Second Amended Complaint is replete with grammatical errors, including improper punctuation, misspelling of words, incorrect conjugation of verbs, and lack of apostrophes when required for possessive adjectives; sentence fragments; and nonsensical sentences. The proposed Second Amended Complaint is also an eyesore, with its formatting errors and spaces.

This caught the eye of Above The Law, which first reported on Judge Altonaga's order here.

That blog reports that the case was voluntarily dismissed shortly thereafter.

“This ruling sentences this highly intelligent, deeply lonely, and distressed ____ to a lifetime of physical and psychological harm, confined to a tiny concrete cell without family, friends, or freedom,”

“This ruling sentences this highly intelligent, deeply lonely, and distressed ____ to a lifetime of physical and psychological harm, confined to a tiny concrete cell without family, friends, or freedom.”

That was not a quote about some criminal defense lawyer's client.  The missing word was orca and the quote was by Jared Goodman, director of animal law at the PETA Foundation, after the 11th Circuit ruled against PETA in its quest to release Lolita.

From Reuters:

By a 3-0 vote, the 11th U.S. Circuit Court of Appeals in Miami rejected claims by People for the Ethical Treatment of Animals (PETA) and others that keeping Lolita in captivity violated the federal Endangered Species Act.

“The evidence, construed in the light most favorable to PETA, does not support the conclusion that the conditions of her captivity pose a threat of serious harm to Lolita,” the court said.

Friday’s decision upheld a lower court ruling. The lawsuit began in July 2015, two months after the National Marine Fisheries Service recognized whales such as Lolita as an endangered species.

***

The appeals court ruled nine days after Bob Barker, the former host of “The Price Is Right” game show and animal rights advocate, called for Lolita’s release in a video posted on PETA’s Twitter account.

Here's the opinion.

Chief Justice raises Ferris Bueller (incorrectly)

Well, the good news is that the Chief Justice of the United States made a Ferris Bueller reference during oral argument. The bad news is that he got it wrong!

The oral argument was in Collins v. Virginia, addressing the question of whether the Fourth Amendment’s “automobile exception” permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Roberts question was about the mobility of cars:

“I mean, if you have an automobile in the house, which is not, you know, Jay Leno’s house, right, where he’s got dozens of rare cars, or the Porsche in ‘Ferris Bueller,’ he says. “Are you saying that you … can just go in because they got it in there somehow and they can get it out?”

 Awesome stuff!  Except it wasn't a Porsche!! It was a Ferrari...

This shows the power of amicus briefs, which raised the Bueller hypo and even used a picture:

How much should a cop have to pay for illegally spying on you?

How much should a cop have to pay for illegally spying on you?

Yesterday, a jury said $15,000. Here’s Paula McMahon:

A South Florida police officer owes $15,000 in damages to a Broward County couple she illegally snooped on 167 times in two years, jurors decided Tuesday.

Pembroke Pines Police Officer Melodie Carpio admitted she broke the law and used her job to look up information about the couple — her boyfriend’s ex-wife and her new husband — on confidential law enforcement databases.

Carpio, a 41-year-old patrol officer, is personally liable to pay the civil judgment to Cindy Thibault and Claude Letourneau. She will also owe significantly more in legal fees to the attorneys for the victims and her defense.

The couple smiled and looked relieved when jurors announced their verdict after a one-day trial in federal court in Miami. They declined to comment.

AG Sessions names Ben Greenberg U.S. Attorney (interim)

AG Sessions has named Ben Greenberg interim U.S. Attorney. Greenberg has been serving as acting U.S. Attorney since Willie Ferrer stepped down. The Vacancies Reform Act allowed Greenberg to serve as Acting USA for a period of 300 days, which ended on December 28. Once that period ended, the AG had the statutory authority to name an interim USA for a period of 120 days (although it’s "interim", unlike the term "acting", that word is not part of the title). After this 120 day period, if there is no nominee, the AG will ask the court to appoint someone, which is usually the same person he appointed as interim USA but doesn't have to be. Greenberg is also up for district judge and if he gets it, there will be a different acting U.S. Attorney.

Here’s the press release from December 28:

Attorney General Jeff Sessions appointed Benjamin G. Greenberg as the United States Attorney for the Southern District of Florida on December 29, 2017. Prior to this appointment, Mr. Greenberg served as the Acting United States Attorney beginning in March 2017 and has been the First Assistant United States Attorney since 2010. He previously held a number of leadership positions in the Office, including serving as the first Chief of the newly created Special Prosecutions Section, where he oversaw the Office’s efforts to combat violent crime, child exploitation, and human trafficking. In 2009, Mr. Greenberg became Chief of the Narcotics Section. In that capacity, he supervised the prosecution of international and domestic narcotics and money laundering cases, as well as violations of the Bank Secrecy Act.

Mr. Greenberg joined the United States Attorney’s Office in 2000 and has handled a wide variety of complex, challenging, and high-profile white collar, violent crime, narcotics, and organized crime cases. He was the lead prosecutor in a series of significant cases against various Israeli organized crime figures extradited to the United States. In recognition of these efforts, Mr. Greenberg received a national award from the Organized Crime Drug Enforcement Task Force. Mr. Greenberg was also part of the trial team that prosecuted the President and Chief Executive Officer of a well-known financial institution for securities and bank fraud arising from a complex international accounting fraud scheme. The Daily Business Review recognized Mr. Greenberg as one of the community’s most effective lawyers for his work on this case.

Mr. Greenberg served as a law clerk to the Honorable Jon Phipps McCalla in Memphis, Tennessee after graduating from the Georgetown University Law Center. Prior to law school, Mr. Greenberg received a fellowship from the Rotary Foundation to study in Jerusalem, Israel after graduating with honors from the University of Pennsylvania.

Judge Scola rules that some of the Mickey Munday 404(b) material will come in (UPDATED — but prosecution not permitted to reference movie Cocaine Cowboys).

UPDATE — NBC6 also covers the ruling here:

A federal judge Friday gave prosecutors an opportunity to use some of a former cocaine smuggler’s words against him in a new mail fraud conspiracy case – but they must avoid using at least one phrase in front of the jury: cocaine cowboy.
In a series of pretrial rulings, US District Judge Robert N. Scola Jr. said the government could try to introduce some of the comments Michael “Mickey” Munday made after his 1999 release from prison about his long-ago days as a pilot and smuggler during South Florida’s cocaine cowboy era – but “without bringing out ‘cocaine cowboys.’”
***“The judge allowed, for example, a 28-second clip from Rakontur Films’2006 documentary “Cocaine Cowboys,” in which Munday talks about using tow trucks as a cover to avoid law enforcement – but, the judge added, the government “does not have to tell the jury this is from the movie ‘Cocaine Cowboys.’ …. We can sanitize out ‘Cocaine Cowboys.’””

Sorry Billy & Alfred.

Original post — Judge Scola has ruled that some of the Mickey Munday 404(b) material will come in (background here). From the Herald (which picked up the story after the blog broke it):

If they’re picked for the jury in a new federal case against Munday, they can see some of that in trial, too — but prosecutors won’t get to shine a spotlight on the Cocaine Cowboys documentary that turned the ex-pilot from Miami into a media celebrity.
That would be too prejudicial, U.S. Judge Robert Scola ruled on Friday, noting that Munday isn’t facing drug charges this time around. Prosecutors have charged him in connection with an insurance fraud ring involving stolen cars.
“I’m trying to minimize the term Cocaine Cowboy being used,” Scola said, acknowledging later: “He’s in a more unique situation than most defendants with a criminal past.”
But the judge did approve a request from prosecutors to show Munday’s Twitter page, in which he dubs himself the “original Cocaine Cowboy,” and one short clip from the film. The reason: the fraud ring’s leader will testify that he recruited Munday specifically because of his notoriety from the 2006 documentary.

The Herald explains the movie:

But the judge did approve a request from prosecutors to show Munday’s Twitter page, in which he dubs himself the “original Cocaine Cowboy,” and one short clip from the film. The reason: the fraud ring’s leader will testify that he recruited Munday specifically because of his notoriety from the 2006 documentary.

Not sure about the Spellman part... Here’s the Plantain:

The Plantain has confirmed that Disney's Animated Studio has purchased the rights to adapt the 2006 documentary "Cocaine Cowboys" into an animated television show. The show will reportedly be geared at 5-10 year old children and feature such educational lessons as how to convert units of measurements into the metric system and the importance of not being a fucking snitch.

Cocaine Cowboys tells the bloody backstory of Miami's 1980's cocaine trade. The seminal Miami movie was created by local filmmaker Billy Corben and his partner, a fictitious individual created for tax purposes supposedly named "Alfred Spellman."

Mickey Munday Motion

Self-proclaimed Cocaine Cowboy Mickey Munday is going to trial before Judge Scola in a fraud case involving car title.  The Government wants to use all of his old Cocaine Cowboy interviews, including from the Billy Corben/Alfred Spellman movie itself, because his cocaine exploits as well as the current case involve “transportation.”  The feds also want to use his Twitter feed, news interviews, and so on.  The whole motion is below, but here is an excerpt about Cocaine Cowboys:

 In 2006, the Defendant starred in the documentary film “Cocaine Cowboys.”  The documentary focuses on the importation and trade of drugs in Miami in the 1970s and 1980s.  The Defendant brags about his ability to smuggle drugs and his proficient evasion of law enforcement.  For instance, the Defendant discusses his use of code words, such as “coming in the front door” or “children in the water,” to evade law enforcement.  The Defendant also states that he would move contraband through the use of a tow truck, a trailer, and a work order.  Further, there is video of the Defendant loading a car onto a trailer.  At trial, the Government intends to offer the testimony of Messrs. Johnson and Carrington, who will discuss their use of code words with the Defendant as part of the conspiracy.  For instance, if a car were to come up as stolen, the Defendant and his coconspirators would refer to it as a possible “Signal Ten.”  Mr. Johnson will testify that the cars hidden at the Defendant’s house were referred to as “Orphans” and the Defendant’s house was referred to as the “Orphanage.”  Similarly, if a lienholder were attempting to locate a car, the Defendant and his conspirators would refer to the car as a “Problem Child.”   Here, just as in the video, the Defendant used a tow service company to serve as a cover for his illicit activity and allow him to transport contraband while maintaining, at least as to the Defendant, plausible deniability.  

Mickey Munday Motion by David Oscar Markus on Scribd

Mickey Munday Motion by David Oscar Markus on Scribd">

Chief Justice Roberts’ year end report

Happy new year SDFLA readers! 

Chief Justice Roberts issued this year-end report, discussing how the courts dealt with natural disasters and how they will deal with sexual harassment.  Here’s the intro:

In October 1780, while American patriots engaged the British in decisive battles for independence, a storm was brewing in the Caribbean.  The Great Hurricane of 1780—the deadliest Atlantic hurricane on record— tracked a course from the Lesser Antilles to Bermuda, leaving a trail of destruction that touched both Florida and Puerto Rico.  Historians estimate that more than 20,000 people died.  The “Great Hurricane” was just one of several storms that ravaged the Caribbean and Gulf of Mexico that fall.  In all, more than 28,000 perished.   Nearly two and a half centuries later, we remain vulnerable to natural catastrophes. Modern communication has enhanced our ability to learn of impending disasters, take precautions, and respond to those in need.  But today’s news cycle can also divert attention from the continuing consequences of calamities.  The torrent of information we now summon and dispense at the touch of a thumb can sweep past as quickly as the storm itself, causing us to forget the real life after-affects for those left in misfortune’s wake.

***
Court emergency preparedness is not headline news, even on a slow news day. But it is important to assure the public that the courts are doing their part to anticipate and prepare for emergency response to people in need.  

HAPPY NEW YEAR TO THE SDFLA!

Happy New Year!

While the rest of the country freezes, we are nice and cozy down here in the Southern District of Florida.  I hope everyone enjoys their family and friends during this short break.  All the best for 2018!

If you are looking for some light reading over the holiday, here's a fun article from law.com with laugh lines at the Supreme Court.  A few examples:

Noel Francisco’s wedding cake. (Masterpiece v. Colorado Civil Rights Commission)
Justice Neil Gorsuch: “In fact, I have yet to have a wedding cake that I would say tastes great.”
Solicitor General Noel Francisco:  And, Your Honor, my wedding cake, the top of it is still sitting in our freezer, and I’m sure it no longer tastes great.”

An “obscure” question from Breyer. (Wilson v. Sellers)
Breyer: “Now, that’s extreme, but you see my point. Okay? What’s the answer to my point?”
Georgia Solicitor General Sarah Warren: “Justice Breyer, I’m not sure exactly what the, what the question was.”
Breyer: “Sorry. Well, from your pleasant expression, it sounded to me as if you were understanding my obscure question.”

Party like a justice. (District of Columbia v. Wesby)
Kagan: “And when looked at from the reasonable partygoer’s view, there are these parties that, once long ago, I used to be invited to, where you didn’t know the host, but you know Joe is having a party. And can I say that long, long ago, marijuana was maybe present at those parties? And, you know, so—and you know, it just is not obvious that the reasonable partygoer is supposed to walk into this apartment and say, ‘Got to get out of here.’”

“Given the caliber of nominees I’m seeing, I’m not comfortable creating a spot that might be filled by someone consistent with the qualifications, or lack of qualifications, of some of the folks I’ve seen nominated."

“Given the caliber of nominees I’m seeing, I’m not comfortable creating a spot that might be filled by someone consistent with the qualifications, or lack of qualifications, of some of the folks I’ve seen nominated." -- Anonymous appellate judge quoted in this BuzzFeed article from yesterday.

Of course there's no issue with staying on board until there's a President you agree with, but other than the occasional outlier, this criticism seems wrong to me.  Whether or not you agree with the politics of Trump's nominees so far, the majority of them seem qualified. Speaking of which, there are still 5 openings waiting to be filled in the Southern District of Florida.  Sources tell me that all 10 JNC finalists have been interviewed by the Senators and/or the White House.  Sources also tell me that the Senators won't be narrowing the list down to 5 recommendations for President Trump (as has been done with previous administrations).  Instead, all 10 nominees will be sent to the President's desk and he will pick 5 out of those... or 5 different selections... or a combination.  No one seems to know.

There's also this bubbling fight with the ABA over Trump's judicial picks.

Merry Christmas one day late in NY Fifa trial

Merry Christmas one day late in NY Fifa trial...

...Bruce Udolf showed the NY prosecutors how things are done from the 3-0-5 (Update—okay, okay... technically Udolf is from the 9-5-4). Not guilty for Manuel Burga, the former president of Peru's soccer federation, who has been in trial the last few months in the Eastern District of New York. The other two defendants were convicted.

Here's Burga leaving the courthouse with Udolf after the win.

Happy Festivus...

... for the rest of us.

Some airing of grievances:

1) Judges who don't vary down from the guidelines for first-time non-violent offenders.

2) Prosecutors who don't have open file discovery.

3) Defense lawyers who don't share what their cooperating clients are going to say.

4) The sentencing guidelines.

5) The few remaining judges who don't order early exhibit lists and pre-trial Jencks.

6) The good-faith exception to the 4th Amendment.

7) "Harmless error."

8) "PCA"

9) Arresting someone without giving them the opportunity to surrender.

10) Min-mans

CA11 holds that police can't tase someone for calling 911

CA11 holds that police can't tase someone (in this case a pregnant woman!) for calling 911. One wonders how this was even a question... but I digress:

Mrs. Brand then turned to Ms. Velazco and asked for a phone so she could call 911. Ms. Velazco handed Mrs. Brand the home phone. Deputy Pardinas ordered Mrs. Brand to “drop the phone,” but she did not. Instead she announced she was dialing 911. Mrs. Brand began dialing when suddenly and without warning, Deputy Pardinas tased her. The tase caused Mrs. Brand to fall to the floor in “[h]orrible, excruciating” pain.
Deputy Pardinas ordered Mrs. Brand to lie flat on her stomach. Deputy Pardinas began “punching [her] back,” striking Mrs. Brand about three times in an attempt to get her to lie on her stomach. Mrs. Brand said she couldn’t lie flat because she was pregnant. She kept one of her legs “elbowed out” to protect her stomach. Deputy Pardinas kicked Mrs. Brand’s leg several times to get her into a fully prone position.
***
As far as Deputy Pardinas knew, Mrs. Brand was not suspected of any crime when the deputy deployed her taser. Mrs. Brand was not the subject of the arrest warrant. And although Mrs. Brand was eventually arrested by Deputy Casal for obstruction and cruelty to children in the third degree, these alleged offenses were based on conduct that occurred before Deputy Pardinas joined Deputy Casal at the front of the house. Deputy Pardinas did not see, and did not know about, the altercation between Mrs. Brand and Deputy Casal that led to the charges against Mrs. Brand.
7 Those charges do not therefore support the reasonableness of Deputy Pardinas’s use of force. See Rodriguez v. Farrell, 280 F.3d 1341, 1352–53 (11th Cir. 2002) (“We do not use hindsight to judge the acts of police officers; we look at what they knew . . . at the time of the act.”).
Second, Mrs. Brand did not pose any “immediate threat to the safety of the officers or others” when Deputy Pardinas tased her. Graham, 490 U.S. at 396, 109 S. Ct. at 1872. It is true Mrs. Brand was “extremely upset [and] agitated” that the officers would not get out of her house. But, under the Brands’ version of events—which we accept at this stage—Mrs. Brand was never violent or aggressive toward the officers. For example, Ms. Velazco reports that Mrs. Brand never even yelled. Indeed, Ms. Velazco testified that “[t]he only aggressive acts came from the officers.” Mrs. Brand was simply standing in her foyer, asking the officers to leave, holding a phone, and attempting to dial 911. The defendants point to the fact that Mrs. Brand disobeyed Deputy Pardinas’s order to “drop the phone.” But there was nothing dangerous about Mrs. Brand holding a phone in the first place, especially where she made clear she was using it only to dial 911. Her refusal to comply with the order to drop the phone did not pose any threat to the safety of the officers, and certainly was not a threat that would necessitate the use of a taser with no warning to Mrs. Brand. Cf. Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011) (“[R]esisting arrest without force does not connote a level of dangerousness that would justify a greater use of force.”).
Third and finally, Mrs. Brand was neither actively resisting arrest nor attempting to escape when Deputy Pardinas tased her. Graham, 490 U.S. at 396, 109 S. Ct. at 1872. By all accounts, she had not even been told she was under arrest at the time she was tased.
Based on the Brands’ account of the facts, we are persuaded that Deputy Pardinas “used force that was plainly excessive, wholly unnecessary, and, indeed, grossly disproportionate under Graham.” Lee, 284 F.3d at 1198. We therefore conclude that Deputy Pardinas’s tasing of Mrs. Brand constituted excessive force in violation of Mrs. Brand’s Fourth Amendment rights.

More on Kozinski (UPDATED -- KOZINSKI RETIRES)

UPDATE: Judge Kozinski has decided to retire, effective immediately.



ORIGINAL POST: The Washington Post had another front page article this weekend, detailing another round of Judge Kozinski allegations.  It’s not pretty.  Above the Law explains:

And that’s really been the nugget at the core of any defense of Kozinski. He was “only” joking, or that he should get a pass or a mere slap on the wrist because his behavior didn’t cross the line into the physical. But in the new WaPo article more women are coming forward with allegations that seem to cross that line and are deeply unsettling.

Take the story of Christine O.C. Miller, who is now a retired U.S. Court of Federal Claims judge. She says that in 1986 she attended a professional event with Kozinski and shared a car ride home at the end of the evening. During that ride Miller alleges Kozinski asked her to stop at a hotel and have sex. When she rejected his advance, she alleges things turned physical:

“I told him, no, I wasn’t interested and didn’t want to be involved in anything like that,” she said. Kozinski, she said, persisted.

“He said if you won’t sleep with me, I want to touch you, and then he reached over, and — this was the most antiseptic — he grabbed each of my breasts and squeezed them,” Miller said. She said she stared straight ahead, and he soon dropped her off at her home.

So now what? The Second Circuit is investigating. He’s hired Susan Estrich at Quinn Emanuel. Will he step down before the Second Circuit concludes its investigation or will he dig in?

Your Friday moment of Zen

Your Friday moment of Zen:

If you haven’t watched Trump’s judicial nominee Matthew Petersen testify yesterday, then you need to watch this.

Judging A Book: Cooke Reviews 'Constance Baker Motley'

Judge Marcia Cooke reviewed "Constance Baker Motley: One Woman’s Fight for Civil Rights and Equal Justice Under Law" for Law360.  Here's the personal and interesting intro:

In the spring of 1955, my mother boarded a train in Sumter, South Carolina. She was traveling to join my father, who had moved to Detroit shortly after I was born. The plan was that she would join him later. They both knew there was little opportunity for economic advancement for African-Americans in South Carolina. They became part of the great migration — Southern African-Americans moving north from the dangerous, segregated South.

She carried me in her arms. I was 9 months old. She packed and carried enough provisions for both of us for the two-day trip. My mother, as a child of the segregated South, knew that the dining car on the train was not available to her. Whatever we would need on the two-day journey was in her luggage. Food. Clothing. Hygiene. Years later she spoke of the kindness of the Pullman porters, the African-American men that worked on the train. One would surreptitiously take my bottle, warm it and return it to my mother. Another would alert her when the small communal bathroom in the “colored” car was just tidied and available so she could take time to clean herself and me of the traveler’s dirt.

Ten years later, a return trip was very different. My family stopped at a West Virginia Howard Johnson’s on a Southern road trip. We walked into the dining room and were promptly seated, our orders were taken and we were served — without incident, thanks to Constance Baker Motley. Constance Baker Motley, who?

As historian Gary L. Ford Jr. states in his recently published biography, "Constance Baker Motley: One Woman’s Fight for Civil Rights and Equal Justice Under Law":

Many of the people Motley helped had no idea who she was or what she did for them. She operated within the confines of courtrooms where many protesters were either banned or strongly discouraged from attending their trials. She was their unseen and unknown guardian angel.

Ford is an attorney and professor of African studies at Lehman College. His biography of Constance Baker Motley is an interesting read, even for nonscholars. The book is also an excellent reference material. The appendix details Motley’s numerous cases before the U.S. Supreme Court, the various U.S. courts of appeals and the U.S. district courts.

Ford’s book is more than a general biography of the woman who would become the first African-American female United States district judge; it presents in vivid detail how her work altered the legal landscape of the United States systematically, case after case, dismantling the Jim Crow laws in the Southern United States. Most of us know that Thurgood Marshall and the NAACP Legal Defense Fund (“LDF”) filed cases to end public school desegregation, defended individuals arrested at sit-ins, and provided legal support and guidance to the early civil rights movement in this country. Most forget that Marshall left the LDF in 1961 when he was appointed to the United States Court of Appeals for the Second Circuit. The legal enforcement of Brown v. Board of Education, the desegregation of professional schools and a host of other litigation and civil rights enforcement fell to Motley.

Judge Moreno is the deciding vote in 11th Circuit case

Judge Moreno (visiting on the 11th Circuit) cast the deciding vote in this published opinion in which Judge Newson battles Judge Wilson (dissenting). From Newsom:

A brief coda: Having endeavored along the way to meet our dissenting colleague’s specific objections, we must respond briefly to his more sweeping charge that we have “disregard[ed]” or cavalierly “passe[d] by” settled procedural rules in a conscious effort to “move to the merits”—only, he says, to adopt a rule that “undermines long-established principles of bankruptcy law and the Code itself, and runs contrary to the purpose of Chapter 13 bankruptcy.” Dissenting Op. at 29– 30, 47. With the utmost respect, none of that is true. The former intimation—that we’ve somehow bent normal procedures in a
headlong rush to parse the U.S. Bankruptcy Code—seems to us to refute itself.
That’s not how courts should operate, and it’s not how we operate—and, let’s just say, the temptation to cut corners is not particularly strong (which is to say nonexistent) when the reward for doing so is an exhaustive assessment of Chapter 13, Georgia’s “pawn” statute, and those laws’ combined import for the fate of a 2006 Dodge Charger. (If anything, the incentives would seem to run in the other direction, but we digress.) Here as always, we’re just doing our best to call ’em like we see ’em. And needless to say, we find no particular joy in concluding that a pawnbroker now owns the car that Mr. Wilber once drove. For better or worse, that’s simply the result that, on our reading, the law requires.

And Wilson responds:

This should be an easy case. The Bankruptcy Code provides—and the Supreme Court and this Circuit agree—that a confirmed Chapter 13 bankruptcy plan enjoys a preclusive, binding effect. A creditor may only escape treatment under a plan if it objects to plan confirmation and then appeals the overruling of that objection. Title Max admitted to the bankruptcy judge, on the record, that it did not object, and the bankruptcy judge confirmed the plan. Title Max now says that it did object and that it therefore can elude the plan’s terms. But the law required an objection before plan confirmation, not a retroactive recasting of motions as objections. Therefore, Title Max remains bound by the confirmed plan.
The majority disregards these simple facts, choosing instead to move to the merits. In doing so, the majority rewards Title Max—by allowing it to sidestep the preclusive effects of a confirmed bankruptcy plan—for changing litigation positions on appeal. I am troubled that we would incentivize an attorney’s inconsistent representations before the courts of this Circuit, including before the judges of this panel, and I thus cannot join the majority’s opinion. Aside from these concerns, I am skeptical of the majority’s holding that state law may operate to divest a federally-created bankruptcy estate of a piece of property that all parties, and the majority, admit entered that estate pursuant to the Bankruptcy Code. Such a holding undermines long-established principles of bankruptcy law and the Code itself, and runs contrary to the purpose of Chapter 13 bankruptcy.
Therefore, I respectfully dissent.

#MeToo movement hits Judiciary

The #MeToo movement has made its way to the judiciary... Judge Alex Kozinski stands accused.  The Washington Post covers the story here:

A former clerk for Judge Alex Kozinski said the powerful and well-known jurist, who for many years served as chief judge on the U.S. Court of Appeals for the 9th Circuit, called her into his office several times and pulled up pornography on his computer, asking if she thought it was photoshopped or if it aroused her sexually.

Heidi Bond, who clerked for Kozinski from 2006 to 2007, said the porn was not related to any case. One set of images she remembered was of college-age students at a party where “some people were inexplicably naked while everyone else was clothed.” Another was a sort of digital flip book that allowed users to mix and match heads, torsos and legs to create an image of a naked woman.

Bond is one of six women — all former clerks or more junior staffers known as externs in the 9th Circuit — who alleged to The Washington Post in recent weeks that Kozinski, now 67 and still serving as a judge on the court, subjected them to a range of inappropriate sexual conduct or comments. She is one of two former clerks who said Kozinski asked them to view porn in his chambers.

In a statement, Kozinski said: “I have been a judge for 35 years and during that time have had over 500 employees in my chambers. I treat all of my employees as family and work very closely with most of them. I would never intentionally do anything to offend anyone and it is regrettable that a handful have been offended by something I may have said or done.”

Kozinski provided the statement after The Post called and emailed a spokesman with a detailed list of the allegations this story would include. After the story posted online, the judge told the Los Angeles Times, “I don’t remember ever showing pornographic material to my clerks” and, “If this is all they are able to dredge up after 35 years, I am not too worried.”

Unlike the politicians wrapped up in similar controversy, Kozinski has life-time tenure. It will be interesting to see how this plays out.

11th Circuit addresses dreadlocks in en banc denial

The 11th Circuit denied en banc review in an interesting case involving lots of discussion of dreadlocks.  Judge Jordan wrote a lengthy opinion concurring in the denial of review.  Judge Martin, joined by Judges Rosenbaum and Pryor, dissented.

Judge Martin starts her dissent this way:

Chastity Jones, a black woman, applied for a position at Catastrophe Management Solutions (“CMS”). She got the job. But after she was hired, the human resources manager—who is white—told Ms. Jones the company had to rescind its job offer because she wore her hair in dreadlocks. The manager told Ms. Jones the problem with dreadlocks is “they tend to get messy,” but at the same time recognized that Ms. Jones’s own dreadlocks were not messy. Even so, CMS took away Ms. Jones’s job offer because her hair violated the company’s blanket ban on dreadlocks.
The Equal Employment Opportunity Commission (“EEOC”) filed suit against CMS on behalf of Ms. Jones. The complaint alleged that CMS discriminated against Ms. Jones on the basis of her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The complaint alleged that dreadlocks are black hair in its natural, unmanipulated state, and that the natural texture of black hair carries with it a deeply entrenched racial stereotype that sees black people as “unprofessional,” “extreme,” and “not neat.” The complaint also alleged that CMS’s stated reason for banning dreadlocks—“they tend to get messy”—did not apply to Ms. Jones, as the human resources manager acknowledged Ms. Jones’s hair was not messy. Thus, the complaint indicated that CMS’s only reason for refusing to hire Ms. Jones was the false racial stereotype. 

Even with these clear allegations of racial discrimination, the District Court dismissed this action based on the pleadings alone. See Equal Emp’t Opportunity Comm’n v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1021 (11th Cir. 2016). This means, of course, that the courthouse doors were closed to Ms. Jones without either she or CMS having any opportunity for factual exploration or development of her claims. On this limited record, then, a panel of this Court affirmed. And now, despite the startling nature of the precedent created by the panel opinion, a majority of this Court has voted not to rehear the case en banc. I dissent from that decision.
The panel held that the complaint failed to state a claim because Title VII prohibits only discrimination based on “immutable traits” and dreadlocks are not “an immutable characteristic of black persons.” Id. at 1021. The panel said our decision in Willingham v. Macon Tel. Publ’g Co., 507 F.2d 1084 (5th Cir. 1975) (en banc),1 dictates this conclusion. See Catastrophe Mgmt., 852 F.3d at 1028–30. I cannot agree. By resting its decision on Willingham’s mutable/immutable distinction, the panel revives—in fact, expands—a doctrine the Supreme Court invalidated more than twenty-five years ago in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989). Even if Willingham’s immutable-trait requirement survived Price Waterhouse, the allegations the EEOC made here on behalf of Ms. Jones are sufficient to satisfy that requirement and state a Title VII disparate treatment claim.

What is the appropriate sentence for Dr. Salomon Melgen?

What is the appropriate sentence for Dr. Salomon Melgen?  That's the question facing Judge Marra, who starts a 3-day (!) sentencing hearing today.  From the AP:

Prosecutors say a prominent Florida eye doctor accused of bribing Democratic Sen. Bob Menendez of New Jersey should get a 30-year sentence for a separate Medicare fraud scheme that they say stole more than $100 million from the federal government.
A three-day sentencing hearing for Dr. Salomon Melgen, 63, is scheduled to begin Tuesday on 67 counts, including health care fraud, submitting false claims and falsifying records in patients’ files. U.S. District Judge Kenneth A. Marra could give Melgen a life sentence, but he has wide discretion. Melgen’s attorneys want less than 10 years.
Assistant U.S. Attorney Roger Stefin argued in court documents that Melgen “was the highest-paid (Medicare) provider in the country for most, if not all, of those years” between 2008 and 2013.
“The crimes committed by the defendant were truly horrific. The defendant not only defrauded the Medicare program of tens of millions of dollars, but he abused his patients — who were elderly, infirm, and often disabled — in the process,” Stefin wrote. “These unnecessary procedures resulted in pain, discomfort, and, in some instances, endophthalmitis, a serious eye infection that can lead to vision loss and blindness.... These ‘treatments’ involved sticking needles in their eyes, burning their retinas with a laser, and injecting dyes into their bloodstream.”
Melgen’s attorneys say prosecutors are exaggerating Medicare’s loss, and say some patients testified the Dominican-born, Harvard-trained doctor improved their sight.
Kirk Ogrosky and Matthew Menchel argue in court documents that the proposed sentence is comparable to what terrorists get, which they say is “irrational on its face.” Because of Melgen’s age and poor health, any lengthy sentence would be equivalent to a life term, they say.
They say a sentence of 30 years or more would result in Melgen being housed in a maximum security prison, which they called “an unnecessary burden on the taxpayers,” given his lack of criminal history. They want him sent to a minimum security camp, which they say would require a sentence of less than 10 years. Prosecutors dispute that, saying the federal Bureau of Prisons would decide his placement regardless of the sentence’s length.

Former Judge Moreno clerk, Asher Perlin, argues before the Supreme Court

Former Judge Moreno clerk, Asher Perlin, argued Rubin v. Islamic Republic of Iran before the Supreme Court today.  Here is the oral argument transcript.  In a very cool moment, Judge Moreno attended the argument to watch his former clerk (he sat in a seat provided by the Chief Justice).  Howard Srebnick, who assisted Perlin in argument prep, was also there.  Here is a picture of Judge Moreno and Mr. Perlin:

SCOTUS to hear sports gambling case

The Supreme Court is hearing the sports gambling case. It's a fascinating battle. Here's the into from SCOTUSblog's preview:

Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case next week, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

New Jersey didn’t take advantage of that exception at the time, but nearly two decades later the state appeared to have second thoughts. In 2010, the New Jersey legislature held hearings to consider the possibility of sports betting, which would benefit the state’s struggling racetracks and casinos. In 2011, New Jersey residents overwhelmingly voted to amend the state’s constitution to give the legislature the power to legalize sports betting, which the legislature did in 2012. The National Collegiate Athletic Association and the four major professional sports leagues – the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball – quickly went to federal court to challenge the 2012 law, arguing that it violated PASPA.

The state did not dispute that the 2012 law conflicted with PASPA. Instead, it countered that PASPA violates the 10th Amendment, which the Supreme Court has interpreted to prohibit the federal government from “commandeering” the states to enforce federal law. But the lower courts rejected that argument, with the U.S. Court of Appeals for the 3rd Circuit ruling that the “anti-commandeering doctrine” did not apply because PASPA does not require the states to do anything; it simply bars them from allowing sports betting. The Supreme Court denied review of that decision.

In 2014, the New Jersey legislature returned to the drawing board. It passed a new law that did not affirmatively legalize sports betting, but instead repealed existing prohibitions on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and professional sports leagues again went to federal court, where the lower courts once again ruled for the leagues. This time, the full 3rd Circuit ruled that, even though New Jersey had “artfully couched” the 2014 law as simply a “repealer,” the statute nonetheless authorized sports betting at casinos and racetracks in the state. This time the Supreme Court agreed to weigh in, granting two petitions for review by New Jersey Governor Chris Christie and the New Jersey Thoroughbred Horsemen’s Association, a group of horse-owners and trainers that also owns a racetrack in New Jersey, which the group believes can only be saved from financial ruin by money from sports betting.

In the Supreme Court, Christie and the NJTHA portray PASPA as an attempt to to take over the legislature’s job that is “dramatic, unprecedented, and in direct conflict with this Court’s Tenth Amendment jurisprudence barring Congress from controlling how the States regulate private parties.” Unlike the 2012 law, they emphasize, the 2014 law does not affirmatively authorize sports betting, but instead just repeals the existing bars on sports betting at casinos and racetracks, without giving the state any role to play in the sports betting that will follow. Indeed, they point out, during the litigation challenging the 2012 law, the federal government itself told the 3rd Circuit that New Jersey was “free to repeal those prohibitions in whole or in part.” And if the 10th Amendment bars the federal government from requiring states to regulate, they contend, it must also be true that the federal government cannot require states to keep on their books laws that they have opted to repeal – which amounts to essentially the same thing as mandatory regulation.

Judge William Pryor's op-ed in the NYT

Judge William Pryor wrote this op-ed in the New York Times, challenging Professor Steven Calabresi's plan to pack the courts with more judges. From the intro:

A prominent conservative law professor, Steven Calabresi, and one of his former students recently published a proposal to expand the federal judiciary by creating hundreds of new judgeships. A founder and chairman of the Federalist Society (of which I have been a member since 1984), Professor Calabresi promoted his “judgeship bill” as a way of “undoing” President Barack Obama’s judicial legacy. But there is nothing conservative — or otherwise meritorious — about this proposal.

Professor Calabresi, who teaches at Northwestern University, argues that federal courts are overwhelmed by their caseloads. He complains that appellate courts hear too few oral arguments and issue too many unpublished opinions, and that district courts too rarely conduct jury trials and approve too many plea bargains in criminal cases. He also contends that the federal judicial conference, the policymaking body for the federal courts, opposes more judgeships because it fears an expansion would diminish the prestige of the judiciary. None of this is true.

It's an interesting debate. I will say this -- the 11th Circuit needs more judges. They only hear oral argument in a very small percentage of cases. With more judges, there would be more oral argument and the litigants would feel like they are getting more process. It's very difficult to have a trial with real issues, only to get a non-published opinion back from the 11th Circuit that was done without the benefit of OA. We don't need 50+ judges as Calabresi says. That's silly. But a few more wouldn't hurt either.

BREAKING -- JNC makes the cut to 10 finalists for district judge

The 10 finalists for the 5 open seats in the Southern District of Florida are:

Roy Altman
Antonio Arzola
Benjamin Greenberg
David Haimes
Peter Lopez
Rodolfo Ruiz
Raag Singhal
Rodney Smith
John Thornton
Melissa Visconti

News & Notes (UPDATED)

-- The JNC's interviews are open to the public today and tomorrow.  Anyone there and want to report back?

-- The ABA has listed its top blogs and twitter accounts.

-- Rumpole may want to pay attention to the 6th Circuit case in which the Court is considering outing the anonymous blogger.

-- James Gonzalo Medina was sentenced to 25 years in prison for attempting to attack an Aventura, Florida synagogue and attempting to provide material support to a foreign terrorist organization.  

UPDATE -- Congrats to Ashley Litwin and Marc Seitles for their win in the 11th Circuit today.  Here's the opinion by Judge Rosenbaum, which starts off like this:

 Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have observed, “Sometimes the questions are complicated and the answers are simple.”1 This is one of those times.
This direct appeal of Defendant-Appellant Edriss Baptiste’s sentence for access-device fraud and aggravated identity theft requires us to determine how to account in Baptiste’s criminal-history calculation for Baptiste’s ostensible sentence from a prior state case. More specifically, a state court purported to sentence Baptiste for a marijuana-possession conviction to “198 days time served,” referring to time he spent in U.S. Immigration and Customs Enforcement detention. Based on this disposition, the district court scored Baptiste two criminal-history points and therefore concluded his criminal-history category was II.
The parties debate whether time in Immigration custody can ever qualify as “imprisonment” for purposes of determining criminal history under the Guidelines. While the parties raise interesting arguments, we instead resolve this case by concluding that where, as here, a defendant has pled guilty to a prior crime and adjudication has been withheld, that disposition must be counted for a single criminal-history point under § 4A1.1(c) of the Guidelines, regardless of whether the sentencing court purported to impose—or even actually imposed—198 days or no days of imprisonment. For this reason, we vacate the sentence imposed by the district court and remand for resentencing, using a criminal-history category of I.

Back at it.

I hope everyone had a wonderful Thanksgiving weekend. It’s back at it, this Monday morning. It’s been almost a year, and we still do not have a U.S. Attorney nominee. But our acting U.S. Attorney, Ben Greenberg, will be interviewing (along with 23 others) for one of the 5 open judicial slots this week. The JNC will be cutting the list to 10, and then our 2 Senators will send 5 names to the President. It’s not altogether clear whether the President will nominate those 5 people or go with 5 of his own. And to come full circle, recent whispers around town have one of those JNC members, Jon Sale, as the emerging candidate (again) for U.S. Attorney.

The big cell-phone privacy case, Carpenter v. U.S., will be argued this week in the Supreme Court. I argued the same issue before the en banc 11th Circuit in U.S. v. Quartavious Davis, so this is an issue close to home for me. A few members of the 11th Circuit questioned whether the 3rd party doctrine should apply in our new technological world. This morning in the Washington Post, the lawyer who successfully argued Smith v. Maryland (one of the 2 leading 3rd party cases), wrote an op-ed saying (rightfully) that those old cases should not apply to our cell-phones:

That new world is defined by the rapid increase in sophisticated — and invasive — technology. It is also defined by a relentless and pervasive assault on privacy. As journalist Julia Angwin has shown in her book “Dragnet Nation,” the new digital world can track our movements, seize our secrets, manipulate our finances and much more.

In such a world, the very notion of a “legitimate expectation of privacy” seems antique.

There is evidence that the courts are catching on. Most predictive, perhaps, are the words of Justice Sonia Sotomayor, concurring in a 2012 case holding that the clandestine and warrantless attachment of a GPS tracking device to a defendant’s car was an unconstitutional search. Sotomayor suggested that “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” As Sotomayor noted, “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries and medications they purchase to online retailers.”
Sotomayor is right. The Supreme Court should develop a modern Fourth Amendment doctrine. Such a test would recognize the legitimate claims of law enforcement but set objective boundaries — such as the duration of an intrusion or the nature of the data seized — that constrain those claims. The Carpenter case is the court’s opportunity to do so.

The world has changed profoundly since I argued Smith v. Maryland. And as Oliver Wendell Holmes Jr. taught us long ago: “The life of the law has not been logic; it has been experience.”

RIP William J. Surowiec, Esq.

RIP William J. Surowiec, Esq.

A great lawyer and super nice guy. And his wife is the best. So sad.

It's been an awful week in the District. Rumpole has a nice post about him here.

A celebration of his life will take place Saturday, November 25, 2017 at 2:00 pm., at the Key Biscayne Yacht Club.

RIP William M. Hoeveler

RIP William M. Hoeveler, a long-time well-respected judge in our District.  here:

The Herald has a nice and detailed obit

Hoeveler even drew praise from the most infamous defendant ever to appear in his courtroom, the deposed Panamanian General Manuel Noriega, who was captured by U.S. forces that invaded Panama in late 1989, leading to a nationally covered Miami trial that was “the mother of all battles in the war on drugs,” as one prosecutor later described it.

“The one shining light through this legal nightmare has been your honor,” said Noriega, who was convicted of cocaine trafficking and racketeering charges in 1992. “You have acted as honest and fair as anyone can hope for.”
***
His judicial secretary for nearly 40 years, Janice Tinsman, once wrote that while Hoeveler is “often considered by people to be the epitome of what a judge should be ... there is another thing he has taught us that many people do not realize, and that is we are on a journey in our lives.”

“I have seen him journey back from a stroke because he believed in what he did in serving the public,” Tinsman wrote in 2011, when Hoeveler won the Federal Bar Association’s Judicial Excellence award, named after the late U.S. District Judge Edward B. “Ned” Davis. “He did not just sit down and not come back. I have seen him journey back from the loss of his wife [Griff] only a couple of months after suffering his stroke.

“He did not quit. ... He loves the law. He did not give up. ... He has shown us that he is a man of faith in God. He has shown us that our paths in life, no matter what has put us on that path or what is in front of us, that we must always journey on.”

RIP Judge Kenneth Ryskamp

RIP Judge Kenneth Ryskamp.  He was 85.  A nice man, who served this District for a very long time.

From his Wiki page:

Education and career

Born in Grand Rapids, Michigan, Ryskamp received an Artium Baccalaureus degree from Calvin College in 1955. He received a Juris Doctor from University of Miami School of Law in 1956. He was a law clerk for Judge Mallory H. Horton of the Florida Third District Court of Appeal from 1957 to 1959. He was in private practice of law in Miami, Florida from 1959 to 1986.^[1]

Federal judicial service

Ryskamp was nominated by President Ronald Reagan on March 12, 1986, to a seat on the United States District Court for the Southern District of Florida vacated by Judge Joe Oscar Eaton. He was confirmed by the United States Senate on April 23, 1986, and received commission on April 24, 1986. He took the judicial oath and commenced service on May 2, 1986. He assumed senior status on January 1, 2000.^[1] As of January 2017, Ryskamp has taken inactive senior status, meaning that while he remains a federal judge, he no longer hears cases or participates in the business of the court.^[2]

“I had no recollection of this meeting until I saw these news reports.”

That was Attorney General Jeff Sessions. Many criminal defendants have (wrongfully) been prosecuted for 1001 violations (false statements) or obstruction for similar statements. One senator made this point to the Attorney General:

As Democrats repeatedly put heat on Mr. Sessions over the evolution of his testimony before Congress, Representative Hakeem Jeffries, Democrat of New York, invoked an unexpected ostensible ally: Senator Jeff Sessions.

Holding up a speech he said Mr. Sessions had given on the Senate floor during the proceedings to remove President Bill Clinton from office, Mr. Jeffries said Mr. Sessions had then justified his vote for removal by saying that he would not hold the president to a different standard than a young police officer he had prosecuted years before for lying under oath.

“You stated that you refused to hold a president accountable to a different standard than the young police officer who you prosecuted,” Mr. Jeffries said. “Let me be clear: The attorney general of the United States of America should not be held to a different standard than the young police officer whose life you ruined by prosecuting him for perjury.”

Mr. Sessions vehemently disagreed with the comparison, repeatedly calling Mr. Jeffries suggestion “unfair.” “Mr. Jeffries, nobody, nobody, not you or anyone else should be prosecuted, not be accused of perjury for answering the question the way I did in this hearing,” Mr. Sessions said. “I have always tried to answer the questions fairly and accurately.”

Fane Lozman is headed back to SCOTUS

Most lawyers dream of getting a golden ticket to the Supreme Court.  Fane Lozman, who isn't a lawyer, just found his second golden ticket.  SCOTUSblog describes the case this way:

With today’s grant in his lawsuit against Riviera Beach, Florida, Fane Lozman – whose eponymous website describes him as a “persistent and tenacious underdog who fought against the government seizure of 2200 homes and businesses” – joins Carol Ann Bond and Encino Motorcars in the pantheon of recent repeat litigants on the merits at the Supreme Court. But unlike Bond’s and Encino’s, Lozman’s latest case involves an entirely different set of legal issues from those presented in his first case, even though his opponent is the same.
In Lozman’s first visit to the Supreme Court, the justices ruled that Lozman’s floating home was not a “vessel” for purposes of federal maritime jurisdiction. His second case, however, arises from his November 2006 arrest at a city council meeting, after he refused to stop talking about local government corruption when a councilmember directed him to do so.
The charges against Lozman were quickly dropped, but that didn’t end the matter. Lozman filed a lawsuit in federal district court, alleging that he had been arrested in retaliation for his criticism of the government and for a lawsuit that he had filed against the city. The U.S. Court of Appeals for the 11th Circuit ruled, however, that Lozman’s retaliatory-arrest claim could not succeed because the jury found that the police had probable cause to arrest him. Now the Supreme Court will decide whether that ruling is correct.