"[W]e’re going to have to law the heck out of it."

That's Judge Rosenbaum in this opinion, taking off on a reference to The Martian:

There’s no easy way around it. We’re just going to have to science the heck out of this case.* And when we’re done with that, we’re going to have to law the heck out of it.
Defendant-Appellant Jason Alexander Phifer was convicted of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). The substance involved was ethylone.
But as it turns out, ethylone constitutes a controlled substance—and Phifer was therefore convicted of an existing crime—only if ethylone is a “positional isomer” of butylone. Phifer says it’s not. To support his position, he urges that “positional isomer” means what he characterizes as the scientific term of art. The Drug Enforcement Administration (“DEA”) disagrees and contends that its regulatory definition of “positional isomer” governs, and even if it doesn’t, ethylone is a positional isomer of butylone under other scientific definitions. If the DEA is right that the regulatory definition necessarily governs, Phifer’s conviction stands. But if not, we must set aside Phifer’s conviction.
After careful consideration and a crash course in organic chemistry, we conclude that the DEA’s regulatory definition of “positional isomer” does not unambiguously apply to the use of that term as it pertains to butylone and ethylone in this case. We therefore vacate Phifer’s conviction and remand for further proceedings consistent with this opinion.

*We paraphrase Matt Damon’s character, Mark Watney, from The Martian (2015). See The Martian Quotes, IMDb, https://www.imdb.com/title/tt3659388/quotes (last visited Sept. 20, 2018). The movie, in turn, was based on the book of the same name by Andy Weir.

The opinion takes a dive into chemistry and even has pictures.

My piece in The Hill on the differences between the Kavanaugh confirmation hearings and the criminal justice system

Here's the introduction with the first two differences. Please click here to read the whole thing:

Christine Blasey Ford has accused Brett Kavanaugh of serious crimes. Let me start off by saying that if these accusations are true, then Kavanaugh should not be a Supreme Court Justice or a judge of any kind. The Senate proposes to have hearings next week in order to consider whether these allegations are true. As these hearings proceed, though, it is important to remember that they are not to determine whether Kavanaugh will be charged criminally. Multiple factors preclude a criminal prosecution here:

The lack of corroboration. It goes without saying that a criminal charge of attempted rape or sexual assault will ruin a person’s life. For this reason, most prosecutors rightfully do not bring these sorts of cases without some sort of corroboration. For example, in the Bill Cosby prosecution, there was corroboration, from Cosby’s own statements to the physical evidence to the sheer number of women who made the same claims. As of this writing, we are not aware of any corroborating evidence to support Ford’s claims. There is no physical evidence. There is no admission to any portion of Ford’s claims by Kavanaugh. There are no similar claims by other women. There is no contemporaneous complaint. Without such corroboration, it is hard to imagine that a prosecutor would bring this case.

The claims are very old. Most states have statutes of limitations for attempted rape and sexual assault. This means that prosecutors can’t prosecute for these crimes after a certain amount of time has elapsed. There are important reasons to have these limitations on prosecutions. For starters, evidence — including memory — gets stale after time. In this case, more than 30 years have passed since the alleged act took place. Therefore, Kavanaugh could not be prosecuted in many states. Maryland, the state where the alleged attack took place, does not have a limitations period for any felony sexual offense. As a practical matter though, the passage of this much time would make such a prosecution almost impossible.

I would appreciate any feedback on the article.

Ben Greenberg stays on as 1st Assistant

Chief Judge Moore swore in Ariana Fajardo Orshan on Monday. In her remarks, she thanked Ben Greenberg and said he would be staying on as First Assistant.

In other news, there is talk about letting Dr. Ford’s lawyer (Debra Katz) question Judge Kavanaugh at the hearings next week before the Senators get their chance to grandstand ask questions. It’s an interesting proposal. I wonder whether Judge Kavanaugh’s lawyer (Beth Wilkinson) would get to ask Ford questions as well.

I like the idea of having the lawyers ask questions instead of the Senators, who don’t know how to ask real cross-like questions and are not really interested in getting out what happened as opposed to making different political points.

If you were able to cross either Ford or Kavanaugh, what questions would you ask?

Here’s Professor Althouse on what she would ask Kavanaugh:

But the bigger problem is that Kavanaugh can only say he has no memory of something. And Kavanaugh's accuser, Christine Blasey Ford, is telling us that he was very drunk, so maybe a failure to remember could be attributed to drinking. He could honestly testify to no memory of the incident, but still need to establish that he didn't have a memory blanked out by alcohol use. Now, since we're not going to hear of the specific time and place of the incident, Kavanaugh will need to say that he never, in that entire period, experienced alcohol-induced amnesia. (And what if he can only say I have no memory of losing my memory?!).

If Kavanaugh denies ever experiencing alcohol-induced amnesia during that period, anyone who hung out with him back then is a potential source of testimony that they saw him drunk and, especially damning, they had reason to know that he couldn't remember what he had done. Is there anybody who knew Kavanaugh in high school who has tales of things Kavanaugh couldn't remember later? Did Kavanaugh ever have a discussion with anyone about alcohol-induced amnesia?

Once we get this far, you can see that whether Christine Blasey Ford's story is accurate or not, Monday's hearing can be used to trap Kavanaugh in lies, and then it's not a possible attempted rape from 30 years ago but perjury in the present.

Remember, the other person in the room, according to Ford, was Mark Judge, and Mark Judge seems inclined to corroborate Kavanaugh, but Judge is on record as a having been "completely annihilated" in high school.

Some interesting portions of the Manafort plea agreement

Here is the entire agreement.

Some interesting parts:

1. The Government believes that the sentencing guidelines yield a sentence of 210-262 months, even after acceptance of responsibility. That means that if Manafort had gone to trial and lost, the prosecution would have suggested that the guidelines were higher than 20 years for the 69-year old.

2. The agreement limits the sentence to a maximum of 10 years. If he successfully cooperates, that sentence will be greatly reduced. If he gets 40-50% cooperation credit, he wil be looking at 5-6 years. If he can convince the Virginia judge to give him a similar sentence and those sentences are run concurrent, he would be released in the 4 year range. He would get credit for the time he has been in.

3. The Special Counsel agreed not to bring any other charges. But this does not bind any state prosecutors (should there eventually be a pardon).

4. The guidelines as set forth in the agreement say that the laundered funds were in excess of $25 million, it involved sophisticated means, he led 5 or more criminal participants, and that he obstructed justice. Interestingly, Manafort carved out the ability to argue that he was not the leader of 5 or more criminal participants.

5. Manafort agreed that he would not profit off of this case through books, speeches, and the like. (As an aside, there is a debate in the law about whether this provision is enforceable).

Pushups, dice, and Chinese restaurants on Christmas

This isn't Page 6 material, but for SCOTUS gossip fans, it's fun stuff.

First up is Notorious RBG who gave a speech yesterday.  Lots of reports about how she said the confirmation hearings need to go back to the way they used to be.  But the great line was that she can do more pushups than anyone on the Court other than Gorsuch "who rides his bike to work" or "possibly" the Chief.  Love it.

Next up is SCOTUS nominee Brett Kavanaugh.  After the hearings last week, the Dems submitted lots of written questions.  There was a whole section about gambling as there have been lots of rumors about him playing cards, dice, and sports.  One specific set of questions centered around an email about a dice game.  He answered that he did play dice, but not for money.

Finally, is Justice Kagan, who spoke last night t Hannah Senesh Community Day School in Brooklyn.  Steven Mazie tweeted about it and has some gems, including her eating at a Chinese restaurant on Christmas like other Jews:

Justice Kagan is in dialogue with Dahlia Lithwick at Hannah Senesh Community Day School in Brooklyn tonight. I'll be tweeting.

— Steven Mazie (@stevenmazie) September 12, 2018

Incoming U.S. Attorney Ariana Fajardo Orshan to start Monday

It's official.  House Fajardo takes the throne on Monday. 

If you could have one policy change at the USAO, what would it be?  Please make your request in the comments, and do so respectfully.

Judge Newsom does not like the Establishment Clause jurisprudence in CA11 or SCOTUS

He really doesn’t like it.

Last week, a per curium panel (Newsom, Hull and visiting district judge Royal) of the 11th Circuit addressed an appeal by the City of Pensacola of “a district court decision ordering it to remove a 34-foot Latin cross from a public park on the ground that the City’s maintenance of the cross violates the First Amendment’s Establishment Clause.”  It affirmed “conclud[ing] that [it was] bound by existing Circuit precedent.”

Fine and dandy.

But Judge Newsom didn’t like being so bound.  He concurred and had lots to say.  He’s a great writer, so agree or disagree, you’ll enjoy the read, where he explains that “[t]he Court’s Establishment Clause jurisprudence is, to use a technical legal term of art, a hot mess.”  He urges en banc review: “Given the inconsistency—er, uncertainty—in the Supreme Court’s own Establishment Clause precedent, I would leave it to the en banc Court to chart the next move for this Circuit.”

How about this passage:

So where does all that leave us? As I’ve already confessed, I don’t pretend to know—as I’m sitting here—exactly how the questions surrounding the constitutionality of the Bayview Park cross should be analyzed or resolved. Here, though, is what I do know: 

1. That the Supreme Court’s Establishment Clause jurisprudence is a wreck; 

2. That as a lower court, we are nonetheless obliged to do our best to discern and apply it; 

3.That in the last decade, the Supreme Court has increasingly emphasized the centrality of history and tradition to proper Establishment Clause analysis, culminating in its statement in Greece that “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’” 134 S. Ct. at 1819 (quoting Allegheny, 492 U.S. at 670 (Kennedy, J., concurring in judgment in part and dissenting in part)); 

4. That there is a robust history—dating back more than a century, to before the time of the adoption of the Fourteenth Amendment, by which the First Amendment would eventually be applied to state and local governments—of cities, states, and even the federal government erecting and maintaining cross monuments on public land; and
5. That our now-35-year-old decision in Rabun—which invalidated a cross situated in a state park and, in so doing, summarily dismissed “historical acceptance” as a reliable guide for Establishment Clause cases—is irreconcilable with intervening Supreme Court precedent.

Federal Bar Association to honor Judge Alan Gold

I am very pleased to announce that the South Florida Chapter of the Federal Bar Association will be honoring Judge Alan Gold with the "Ned" Award, named after our beloved Edward B. Davis.

The  Annual Awards and Installation Dinner will be held at the Four Seasons Hotel, Brickell, on Thursday, October 11, 2018, at 5:30 pm. You can purchase tickets here.

Judge Davis would have been thrilled that Judge Gold is receiving this award.  Gold is a UF grad and then attended Duke for law school.  He served as a state judge and then President Clinton nominated him in 1997 to fill Jose Gonzalez's seat.  He took senior status in 2011.  Judge Rosenbaum filled his seat.

District updates

While Supreme Court nominee Judge Brett Kavanaugh is proceeding with his confirmation hearing (follow live Scotusblog here), our District is also undergoing some changes:

1. New U.S. Attorney Ariana Fajardo Orshan has been confirmed. She will be taking the reigns shortly.

2. District judge nominees Roy Altman and Rudy Ruiz have not yet been set for final hearings. That may happen sometime in October. The other nominee Rodney Smith has not yet had his initial judiciary committee hearing so it is unclear when he will be confirmed. The other two open slots remain open and there is no pending action on them.

3. The magistrate judge committee will be interviewing 15 candidates for two slots on October 1. The district judges will then vote on the slate at the judges' meeting on October 4.

4. There is one constant in the District, Federal Defender Michael Caruso.

So you wanna be a magistrate judge?

We will have two new magistrate judges in the beginning of 2019.  The magistrate judge committee is set to interview 15 of the applicants.

I don’t have the whole list, but I am hearing that there are some favorites emerging to get the two slots (in alphabetical order):

1.  Jacqueline Arango (Akerman, former AUSA)
2.  Jacqueline Becerra (Greenberg Traurig, former AUSA)
3.  Sowmya Bharathi (AFPD)
4.  Steven Petri (AUSA)
5.  Erica Zaron (County Attorney’s Office)

Good luck to everyone!

How do the Cuban courts work?

Local South Florida prosecutors caught a glimpse during a murder trial.  The whole article is worth a read, but here’s the intro from the Miami Herald:

A witness box occupies the center of the courtroom. Five judges in long black robes listen to testimony. The defendant watches from the front row of the gallery with an armed guard at his side. There is no jury.

This is how justice operates in Cuba’s socialist system. Or at least that is what Florida prosecutors gleaned from a murder trial in Havana that was groundbreaking on several fronts: The star witness was a detective from the Palm Beach Sheriff’s Office; the defendant was a Cuban national accused of shooting a Jupiter Farms doctor in the head before he fled to the island, and a Florida prosecutor helped prepare the Cuban prosecution team for trial.

“It was fascinating. I was impressed how much it resembled our courtroom process,” said Assistant State Attorney Aleathea McRoberts, who was part of the team that made arrangements for the defendant, Marcos Yanes Gutierrez, to be tried in Cuba and watched the trial from the gallery. “There were opening statements, the presentation of evidence and closing arguments.”

‪Breaking — Ariana Fajardo Orshan confirmed as U.S. Attorney. ‬

Big congrats to Ariana Fajardo Orshan on her confirmation as U.S. Attorney for the best District in the country—the Southern District of Florida.

She takes over one of the busiest and certainly most exciting districts. Good luck to her!

"Open the Federal Courthouses"

That's the title of my op-ed, which was just published in Law360. 

Please click the link above to read the whole thing.  Here's the intro:

In the era of instantaneous 24-hour news, two of the most important and newsworthy events of the year just occurred: The president’s former campaign manager went to trial, and on the same day that the jury split its verdict, the president’s former personal lawyer pleaded guilty to federal crimes and implicated the president in the process. Shockingly, the public did not see any of it.

We were not able to see the government’s main cooperating witness, Rick Gates, and judge for ourselves whether he was telling the truth or lying. We were not able to see the lawyers debate about important legal issues related to the special counsel’s office. We were not able to see Michael Cohen’s expression as he told the judge that he broke the law at the instruction of the president of the United States.

Forget about cameras, reporters in the Paul Manafort trial were not even permitted in the courtroom with their phones, tablets or computers. That meant no live reporting on Twitter and no emails to the newsrooms with updates. In a world focused on information and news as it happens, this is unacceptable.

If this trial or the plea hearing took place in any state court in the country, or if related hearings were held by Congress, the public would have the benefit of watching what was happening, either live or on their DVRs or on the nightly news. They would be able to follow instant reports on social media. In other words, the public would have access to the courtrooms, as guaranteed by the Constitution. And there could be no allegation that the reporting was “fake.”

If there was a vote on whether cameras should be allowed in our federal courthouses, it would pass — overwhelmingly. In fact, the only group of people who seem to be against cameras in the courtroom are federal judges.

"It's called flipping and it almost ought to be illegal."

That was the President of the United States this morning, according to this CNN article:

Trump's latest attempt came in a friendly taped interview with Fox News, which was conducted on Wednesday but aired a day later. Trump sought to put distance between himself and his former lawyer Michael Cohen, who admitted to campaign finance crimes in federal court on Tuesday and implicated the President by saying he'd directed the action.

And he sharply decried those who testify against former confidants to ease legal troubles, bemoaning the longstanding practice.

"It's called flipping and it almost ought to be illegal," Trump said in the interview, adding he's witnessed similar scenarios over his decades in public life. "I know all about flipping, 30, 40 years I have been watching flippers. Everything is wonderful and then they get 10 years in jail and they flip on whoever the next highest one is or as high as you can go."

Suspects cooperating with prosecutors in exchange for a reduced sentence is a central feature of the criminal justice system, but Trump has long valued loyalty over legal precedent or practice.

Actually, there was a short period of time back in the late 90s where courts found that federal prosecutors' use of 5K and Rule 35 were illegal because it was bribery under 18 U.S.C. Sec. 201.  In other words, it encouraged false false testimony (which is very different than the claim that snitching should be illegal because its disloyal).

The main case was U.S. v. Singleton out of the 10th Circuit. Judge Zloch followed suit in U.S. v. Lowery, 15 F. Supp. 2d 1348 (S.D. Fla. 1998).  From his conclusion:

The Court's finding herein, although lengthy, may be reduced to one simple principle: it is not this Court's Constitutional function to engage in legislation. By invoking the theory that "settled expectations" demand exclusion of the Executive Branch from the reaches of Section 201(c) (2), the Executive Branch requests that this Court usurp the function properly left to the United States Congress. Moreover, the Executive Branch's theory amounts to nothing more than this: it has always been done this way, so it must be right. Such reasoning has never been the proper basis for a legal ruling and this Court refuses to make it the basis for one now.
Further, if, as the Executive Branch asserts, Section 201(c) (2) obviously excludes the Executive Branch, the Court feels compelled to question the need for legislation, hurriedly introduced in the wake of Singleton on July 15, 1998, to amend the Statute. See S. 2314, 105th Cong. (1998). By such action, Congress has reinforced the conclusion that Section 201(c) (2) presently includes the Executive Branch.
Finally, the Court notes that the testimony of cooperating witnesses and cooperating defendants is a valuable resource for law enforcement in the investigation and successful prosecution of criminal activity. Any exclusion, however, of the Executive Branch from Section 201(c) (2) must come from the Legislative Branch, and not the Judicial Branch. A judge's authority has limits and outside those limits or designated areas, the democratic institutions govern. Thus, if any changes are to be made to Section 201(c) (2), or if more appropriate, the substantial assistance provisions, it is solely for Congress, and not for the courts or the Executive Branch, to make them.
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED that the Defendant, Oslet Franklin Lowery, Jr.'s Motion To Suppress (DE 134) be and the same is hereby GRANTED.

Singleton, Lowery, and other cases didn't last long.  They were all reversed.  

11th Circuit judges speak their minds on Roe v. Wade (and it wasn't Judge Bill Pryor!)

The case is West Alabama Women's Center v. Williamson.

Chief Judge Carnes starts off his opinion this way:  "Some Supreme Court Justices have been of the view that there is constitutional law and then there is the aberration of constitutional law relating to abortion.* If so, what we must apply here is the aberration." (Footnote omitted).

If there is any question as to how he feels about abortion, you can see it here in the first paragraph of the intro section: "This case involves a method of abortion that is clinically referred to as Dilation and Evacuation (D & E). Or dismemberment abortion, as the State less clinically calls it. That name is more accurate because the method involves tearing apart and extracting piece-by-piece from the uterus what was until then a living unborn child. This is usually done during the 15 to 18 week stage of development, at which time the unborn child’s heart is already beating."

Judge Dubina concurs just to make sure that everyone knows that he personally disagrees with Casey and Roe too: 

I concur fully in Chief Judge Carnes’s opinion because it correctly characterizes the record in this case, and it correctly analyzes the law. I write separately to agree on record with Justice Thomas’s concurring opinion in Gonzales v. Carhart, 550 U.S. 124, 168-69, 127 S. Ct. 1610, 1639-40 (2007) (Thomas, J., concurring), with whom then Justice Scalia also joined. Specifically, Justice Thomas wrote, “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey [Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791 (1992)] and Roe v. Wade, 410 U. S. 113, 93 S. Ct. 705 (1973), has no basis in the Constitution.” Id. at 169, 127 S. Ct. at 1639. The problem I have, as noted in the Chief Judge’s opinion, is that I am not on the Supreme Court, and as a federal appellate judge, I am bound by my oath to follow all of the Supreme Court’s precedents, whether I agree with them or not.

OK, Judge Dubina. You're on record now.

In other 11th Circuit news, the court addressed the Georgia state court bail system where an man was arrested and was too poor to post bail.  Therefore he was held for 6 days even though the misdemeanor he was arrested for could not be punished by a jail sentence.  Judge O'Scannlain (visiting from the 9th Circuit) along with Julie Carnes said as long as bail is addressed within 48 hours, all is OK.  Judge Martin started her persuasive dissent like this:

Maurice Walker was jailed by the City of Calhoun for six days because he was too poor to pay his bail. He challenges the City’s practice of jailing people before trial when they are too poor to make bond, arguing it violates the constitutional guarantees of due process and equal protection. The Majority rejects this claim, characterizing the pretrial jailing as “merely wait[ing] some appropriate amount of time to receive the same benefit as the more affluent.” Maj. Op. at 27. In this way, the Majority renders it unnecessary to review the City’s practice with heightened scrutiny. I believe the Majority rewrites this court’s binding precedent in Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc),2 which held that “[t]he incarceration of those who cannot [pay for pretrial release], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Id. at 1057. The Majority fails to recognize this infringement on the rights of indigents, so I dissent.

What does the Cohen plea agreement say? (Corrected)

Here is the Michael Cohen plea agreement to all 8 counts of the information.

The maximum sentence to these 8 counts is 65 years.

The government calculates the guidelines at level 24 (51-63 months) and the defense calculates a level 23 (46-57 months). The dispute is over grouping. I would love to hear the pundits (especially the ones who have never practiced in federal court) trying to explain the grouping guidelines. Most federal probation officers and judges can't figure out the grouping rules.

The guidelines were calculated as follows:

Base offense level 7
+16 for more than 1.5 million and less than 3.5 million under the fraud guidelines
+2 for sophisticated means (for use of the shell companies)
+2 for special skill (lawyer)
-3 for acceptance of responsibility
total: 24
(the defense believes it's 23 based on a complicated grouping argument)

CORRECTION.  I initially posted that the parties agreed that no variance arguments could be made, but this was incorrect.  The bottom of page 4 says that no *departure* arguments could be made, but the top of page 5 allows for variance arguments.  That means that Cohen is free to argue for a below-guidelines sentence based on personal characteristics, sentencing disparity, and just about anything he wants.  The prosecutor is free to argue for an above guideline sentence based on the seriousness of the crime, impact on the community and so on.  But an above guideline sentence is unlikely.

Although it's not specifically mentioned in the plea agreement, it is obvious that Cohen is cooperating. He said as much during his colloquy today and his lawyer, Lanny Davis, has been all over the news saying the same thing.

If he gets cooperation credit, the defense will be asking for a significant reduction below the guidelines -- probably all the way to probation.  It is too difficult to speculate what the prosecution would ask for at this time, although the SDNY is known for giving large cooperation reductions. The judge will be permitted to do whatever he wants, from 0 to 65 years in prison.  But he will likely start with the guidelines and then go lower depending on how much Cohen cooperates and based on the variance arguments he makes.

The plea agreement was not signed by the U.S. Attorney for the SDNY as he is recused. So Robert Khuzami was on the signature block as Acting U.S. Attorney. Guy Petrillo signed for the defense.

Tough day for the White House, to say the least.

Manafort guilty of 8 counts in trial #1. He still has trial #2 in DC.

Waiting is the hardest part

Trial lawyers know that the worst part of the case is waiting for the jury to return a verdict. You can’t do other work. You just sit around stressed to the max, filled with both hope and anxiety. And the longer the jury is out, the more that anxiety builds.

It’s funny listening to the talking heads explaining what short deliberations mean and what the lengthy Manafort jury deliberations mean. No one knows, obviously. They just finished day 3 without a verdict. It may mean that they are going slowly through the evidence. It may mean that they are fighting. It may mean that they want another lunch. It may mean that there is one holdout. Or more. Or an even split.

I’ve had juries out 9 days and juries out 15 minutes and everything in between. It’s just impossible to know what they are thinking.

Good story about my 9 day jury — It was a trial in Savannah, GA with 10 defendants. My middle daughter was born on a Friday and we started the 6 week trial on the following Monday. When the trial was over, I was looking forward to getting home and spending time with my new baby. But the jury wouldn’t reach a verdict. Day after day. Finally on day 9, my wife decided to travel up to Savannah so that I could see the baby. You know what happened 5 minutes after she boarded the flight and turned off her phone... Of course... VERDICT. Happily for me and my client, it was a not guilty. That was a fun celebration...

“If you don’t have the right equipment for the job, you just have to make it yourself.”

What does that MacGyver quote have to do with the FTCA? CA11 Judge Rosenbaum, known for her awesome intros, is here to tell you:

The fictional Angus MacGyver’s defining talent is his ability to cobble together a solution when the precise tools he needs to solve a problem are not available.1 As “Mac” has explained, “If you don’t have the right equipment for the job, you just have to make it yourself.” MacGyver: Out in the Cold (ABC television broadcast Feb. 16, 1987). So synonymous with improvising has the name “MacGyver” become that the Oxford Dictionaries added the name to their collection as a verb meaning to “[m]ake or repair (an object) in an improvised or inventive way, making use of whatever items are at hand.” https://premium.oxforddictionaries.com/us/definition/american_english/macgyver.

The Federal Tort Claims Act’s (“FTCA”) directive making the federal government liable “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C. § 2674, requires courts to MacGyver a remedy in fashioning tort-damages awards against the United States, where the unique aspects of the federal government make it difficult or impossible to strictly apply a state damages statute to the government. In those situations, courts must approximate the statutory remedy as closely as they can to achieve the ends required by the FTCA.

Here, we review the district court’s efforts in improvising application of Florida’s medical-malpractice-damages statute, section 768.78(2) of the Florida Statutes, to Appellant-Cross-Appellee United States. Following a bench trial, the United States was held liable upon the district court’s finding that a doctor at a federal health facility caused Plaintiffs-Appellees-Cross-Appellants’ son E.R.T., Jr. (“E.R.T.”), to suffer severe and life-altering injuries at the time of his birth. On appeal, the government challenges the district court’s application of section 768.78(2) to the method of payment the district court chose for the government to satisfy the judgment against it. Plaintiffs, meanwhile, cross-appeal the district court’s jerry-rigging of section 768.78(2)’s bond requirement as the court found it pertains to the United States. The district court did an admirable job of MacGyvering a solution in this case, and we affirm much of what it did. Nevertheless, for the reasons that follow, we must reverse discrete portions of the district court’s judgment and remand for further proceedings consistent with this opinion.

1. Angus MacGyver is the lead character in the television series MacGyver, a show that centers on MacGyver’s use of scientific knowledge to solve problems and to extricate himself and his team members from danger. The original version of MacGyver, starring Richard Dean Anderson, ran from 1985 through 1992. MacGyver(original), IMDb, https://www.imdb.com/title/tt0088559/?ref_=nv_sr_2 (last visited Aug. 13, 2018). In 2016, the series was rebooted, this time with Lucas Till playing the name character. MacGyver (reboot), IMDb, https://www.imdb.com/title/tt1399045/?ref_=nv_sr_1 (last visited Aug. 13, 2018).

District updates

1. The incoming U.S. Attorney Ariana Fajardo Orshan will be up for a final vote shortly. She will be confirmed and is expected to be in the office in the next few weeks. She has been well liked everywhere she has gone (the State Attorney’s Office, Circuit Judge, and leader in the Federalist Society), and this should be no different.

2. The two open magistrate positions are still open. Applications are due Wednesday. From the email blast that just went out:

The Judicial Conference of the United States has authorized the appointment of two (2) full-time United States Magistrate Judges for the Southern District of Florida at Miami. The term of office is eight years.

A full public notice for the magistrate judge positions is posted on the Courts Internet website at: http://www.flsd.uscourts.gov. One position initially will be assigned for a period not to exceed three years to supervise the Court's Pro Se Prisoner Division.

Interested persons may contact the Clerk of the District Court for additional information and application forms. The application form is also available on the Courts website http://www.flsd.uscourts.gov. Applications must be submitted only by applicants personally to; Flsd_magistratejudgerecruitment@flsd.uscourts.gov by 5:00 p.m. on Wednesday, August 22, 2018.

11th Circuit updates

A bunch of interesting decisions coming out of CA11:

1. Another Johnson fight, this time in an en banc denial. Judge Martin dissents from the denial and explains the makes-no-sense position o the 11th. Julie Carnes defends that position in a concurrence to the denial. Martin’s conclusion is very powerful:

The Supreme Court recently reminded us of our crucial duty to “exhibit regard for fundamental rights and respect for prisoners as people.” Rosales- Mireles v. United States, 585 U.S. ___, 138 S. Ct. 1897, 1907 (2018) (quotation omitted). This duty encompasses thorough review of sentences we now know are longer than the law permitted, because “[t]o a prisoner, th[e] prospect of additional time behind bars is not some theoretical or mathematical concept[;] . . . [it] has exceptionally severe consequences for the incarcerated individual and for society which bears the direct and indirect costs of incarceration.” Id. (quotations omitted and alterations adopted). When considering claims like Mr. Beeman’s, “what reasonable citizen wouldn’t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?” Id. at 1908 (quotation omitted).
Mr. Beeman was sentenced in 2009. With a ten-year maximum sentence, he could be nearing his release date. Instead, he will spend another seven-and-a-half more years behind bars. And not only does this Court sanction his unconstitutional sentence, we will prevent him—and many other prisoners like him—from arguing the full merits of his case in court. Our Court is now daily presented with pleadings from prisoners who are barred from our Court because of the rule created in the Beeman panel opinion. In my view, it is the role of the courts to hear these claims. I therefore register my dissent about this court’s failure to do so.

2. The 11th had to decide what to do with a cell-site case post-Carpenter. Sadly, the court finds that the good faith exception applies and holds that even though there was a 4th Amendment violation (grudgingly), no need to suppress anything (yay):

The Government has maintained throughout this case that it acted in good faith and that the Leon exception therefore applies; neither Sturgis nor Joyner presented any argument or evidence to either the district court or this Court to counter that proposition. They have instead relied on their assertion of a warrant requirement and their hope that Carpenter would come down in their favor,5 but the fact that the Carpenter Court agreed with their Fourth Amendment theory does not affect the applicability of the Leon good faith exception in this case.

3. Finally, the court vacated a plea and sentence where there was no transcript of the plea and the lower court could not adequately reconstruct the record:

Because the reconstructed record does not allow for effective appellate review of Elmore’s change-of-plea hearing, we vacate her convictions and total sentence, and remand her case to the District Court for further proceedings.

Why do some judges like "rocket dockets" and "rocket trials"?

I have yet to find a lawyer who likes them.  And most judges don't act this way.  But the E.D.V.A. is known for having a rocket docket.  And there are a handful of judges here and around the country who have them.  The Atlantic covers the rocket Manafort trial here:

There is no dillydallying in the trial of Paul Manafort.

Jury selection lasted but a few hours. The federal judge presiding over the case has repeatedly reminded the lawyers of his impatience and routinely interrupts their questioning of witnesses to speed them up. The most dramatic part of the trial has quickly come and gone. The whole thing could be over in three weeks, leaving plenty of time before Donald Trump’s former campaign chairman has to stand a second trial on separate charges in September.

High-profile trials of deep-pocketed defendants can often drag on for months. But Special Counsel Robert Mueller’s initial prosecution of Manafort on charges of financial fraud is moving briskly along, and its speedy pace is largely due to the particular federal district court where the case is being tried.

The Eastern District of Virginia is famous in the legal community for being the nation’s original “rocket docket”—a jurisdiction where strict rules and a deeply embedded judicial culture help move cases to trial more rapidly than almost anywhere else. In civil cases, the court has been ranked first for speed year after year, but the reputation extends to criminal prosecutions as well.

Here's a more reasonable judge (in Houston) who now has a standard order granting automatic stays where one of the lawyers is pregnant:

Pregnant litigators already have enough to worry about without trial dates getting in the way of due dates.

So Houston state district Judge Ravi Sandill recently issued a standing order that grants expecting lawyers an automatic continuance of a trial setting in his court for up to 120 days before the birth or adoption of a child.

“We did it for a couple of reasons,” said Sandill, judge of Harris County’s 127th District Court. “For one, it’s the right thing to do. And secondly — I think most judges do this already — but it alleviates anxiety for lawyers.”

Sandill said he came up with the idea after reading about Christen E. Luikart, a pregnant Florida lawyer whose motion for continuance sparked controversy last month after her opposing counsel objected to it — just as the Florida Supreme Court is weighing a proposed rule that would create a presumption that pregnant lawyers should get three-month continuances.

“After reading about that, I thought if we could push this, leading by example is not a bad thing for the practice,’’ Sandill said of his order.

"However, when it comes to whether or not the president should agree to a voluntary interview, the usual rules apply."

That's Jon Sale in his op-ed for The Hill.  Here's the intro to the piece:

For months now, pundits have propagated the myth that special counsel Robert Mueller and his team must interview President Trump to complete their investigation. This misconception is based on the belief that Mueller requires and is entitled to an interview to determine the president’s knowledge and intent. Mueller is not so entitled, and the president should not do it.

Government prosecutors conduct white-collar investigations every day. Usually, prosecutors complete their investigations without the benefit of interviewing the person under investigation.

Like all white-collar investigations, Mueller’s investigation requires an analysis of the president’s knowledge and intent. The allegations involving obstruction and foreign meddling in our election are no exception.

Knowledge and intent determinations are necessary in most white-collar investigations. Typically, prosecutors determine whether they can prove criminal intent based on the facts uncovered in their investigation, including relevant witness testimony and documentary evidence such as emails.

The prevailing view, based on legal opinions from the Justice Department’s Office of Legal Counsel, is that Mueller cannot seek an indictment of the president from the grand jury and, thus, his recourse is to write a report. That report can address the president’s knowledge and intent based on the evidence, without the benefit of a voluntary interview of the president.

While it is “typical” for a prosecutor to conclude an investigation without interviewing the person under investigation, this investigation is anything but typical. However, when it comes to whether or not the president should agree to a voluntary interview, the usual rules apply. The president’s legal team is wise in recommending that he not agree to an interview; all it could do is help Mueller’s team advance an arguable case against the president.

Should judges ask questions of witnesses?

We're back on the Manafort trial.  Lead snitch Rick Gates is on the stand and is getting hammered for his lies.  Even the judge took part.  From the Washington Post:

Just before the jury left for the day, Rick Gates echoed other prosecution witnesses in saying Paul Manafort kept a close eye on his financial affairs.

“Mr. Manafort in my opinion kept fairly frequent updates,” Gates said, after a discussion of movement between their consulting firm’s offshore accounts. “Mr. Manafort was very good at knowing where the money was and where it was going.”

Judge Ellis, as he has repeatedly, interjected.

“He didn’t know about the money you were stealing,” Ellis said, “so he didn’t do it that closely.”

The comment by the judge goes to a question at the heart of the trial — how much fraud could possibly have gone on under Manafort’s nose without his knowledge.

Downing also challenged Gates on his acceptance of responsibility, pointing out that he has not repaid the money he stole from Manafort.

“I spent it over the years,” Gates said.

That's pretty devastating for the prosecution.  But I feel pretty strongly that judges should not be questioning witnesses.  It's just not their role.  And jurors tend to defer to judges.  Most times, judges do it to cover for prosecution mistakes and it hurts the defense, especially during a strong cross of a government witness.  No one really complains when this happens... the complaints only seem to crop up when the prosecution is getting hurt. Either way, though, judges should let the lawyers do the questioning. 

"Prosecutors will decide..."

That was the catch-phrase in John Oliver's take on why the criminal justice system is in shambles. He ticks through a bunch of the problems that result from letting prosecutors control the system: the trial tax, what discovery is produced, no accountability for misconduct, and so on.  One example:

“Prosecutors typically get to decide whether something is relevant to the defense, which seems inherently flawed,” said Oliver. “You can’t just count on an adversary to voluntarily expose all of their weaknesses. In Star Wars, the rebels had to steal the Death Star plans. The Empire didn’t just email it to them with the subject line FWD: GIANT STUPID WEAK SPOT (VERY DUMB, GO TO TOWN).”

It's below and definitely worth a watch.

In the Manafort trial, the judge is actually standing up to the prosecution team and trying to limit irrelevant evidence. But the prosecutors aren't used to someone else deciding. So they have resorted to disrespect and anger. From Politico's article "Manafort prosecution's frustration with judge leads to fiery clashes":

For days, U.S. District Court Judge T.S. Ellis has been cracking the whip at prosecutors in the Paul Manafort fraud trial, prodding them again and again to keep the case moving forward and to drop matters he considers irrelevant.

Prosecutors’ frustration with those exhortations spilled out publicly Monday in a series of prickly clashes in which Ellis snapped at one of special counsel Robert Mueller’s prosecutors, Greg Andres, and Andres sometimes lashed back at the judge — something lawyers rarely do.

The day’s first significant altercation came as Andres sought to question Manafort’s former deputy, Rick Gates, about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.

***

Ellis said he wanted to give Andres an “opportunity to educate me” about the usefulness of the testimony about Ukraine’s political system and why wealthy individuals were paying millions of dollars to back Manafort’s work as a political consultant.

“I don’t see any earthly relationship” between testimony about “political contributions” and the alleged tax evasion on Manafort’s part, the judge said.

Andres took issue with calling the payments political contributions, and he appeared to fault Ellis for minimizing the significance of the payments in his comments in front of the jury

“These people are not making political donations,” the prosecutor said. Calling the donors “oligarchs” — a term Ellis banned the government from using in front of the jury last week — Andres explained that their livelihood was completely dependent on government-granted monopolies.

“That makes it even clearer to me” that it’s not relevant, the judge interjected. “It doesn’t matter whether they’re good or bad or oligarchs or crooks or mafia or whatever. … You don’t need to throw mud at these people.”


At that point, Ellis noted that Andres was looking at the lectern. “You’re looking down as if to say, ‘This is B.S.,’” the judge complained.

Andres seemed angered by the accusation and said the judge was leaping to conclusions. “We don’t do that to you,” the prosecutor said.

When the judge mentioned an earlier complaint he made about lawyers rolling their eyes, Andres interrupted again and the atmosphere grew tense. “I find it hard to believe I was both looking down and rolling my eyes,” he said.

Andres pressed on with his argument that the payments to Manafort were not political contributions, this time adding the charge that every time the government tried to elicit testimony about why the payments were made, “Your Honor stops us.”

“The record will reflect I rarely stopped you,” Ellis insisted.

“I will stand by the record,” Andres snapped.

“And you will lose,” the judge shot back.

Interesting state court issue concerning the Governor's power to appoint judges

Florida Circuit Judge Robert Foster is due to retire on January 7, 2019, due to mandatory retirement. That would mean that Gov. Scott's successor would appoint his replacement. So Judge Foster said he will retire on Dec. 31, 2018, to allow Scott to appoint his replacement. The First District agreed that this was permissible. But the Florida Supreme Court (4-3) has stayed the order pending further briefing. It's an interesting battle, covered more in depth by this article.

There's no good solution to how we select our judges. Appointments are by their nature political. And elections are not based on actual judicial qualifications since they are not permitted to campaign or debate. I'm not sure what the right answer is here.

11th Circuit panel not happy about the new “panel published order” rule created by another panel

So the Johnson litigation produced lots of angry opinions back and forth by various wings of the 11th Circuit. One wing got the upper hand by quickly publishing a bunch of orders within 30 days days (based on pro-se pleadings under 100 words, without government responses, and without oral argument). And in those orders, the right wing of the court said that they are binding on future panels. Judges Wilson, Martin, and Jill Pryor are rightfully not happy about it. And said so in two concurrences in this order.

From Judge Wilson’s concurrence:

These applications are often decided without counseled argument from the petitioner, and are always decided without an opposing brief from the government, except for death-penalty-related applications. We also rarely have access to the whole record. See generally Jordan, 485 F.3d at 1357–58 (describing the limitations we face when deciding these applications). When making these determinations, therefore, the panel typically races to issue an unappealable order based solely on the arguments of a pro se prisoner constrained to a little over one page per ground.
Conversely, when we decide a merits appeal, we have essentially unlimited time to decide the case, there are usually attorneys on both sides, we have extensive briefing, and we have the entire record in front of us (including an order from the court below). And the large majority of our published merits opinions come from our oral argument calendar, where attorneys for each party argue for at least fifteen minutes. Of course, after a merits opinion issues, aggrieved parties may petition for panel rehearing, for rehearing en banc, or for a writ of certiorari.
Despite this stark contrast in process, published panel orders and published opinions now enjoy the same precedential heft, equally binding future panels of this court unless and until overruled by the court sitting en banc. In fact, published panel orders perhaps have greater weight, because they may not be appealed to the Supreme Court and they may not be the subject of a petition for rehearing en banc. We should not elevate these hurriedly-written and uncontested orders in this manner.

RIP John Hogan

Sad day for the Miami legal community as it says goodbye to John Hogan. From the Miami Herald obit:

John Hogan — an influential lawyer who prosecuted racially charged police shootings during an era of riots in Miami and also advised Janet Reno during her tenures as Miami-Dade state attorney and U.S. attorney general — has died at age 68.

Hogan — who after his career in public service went on to lead the litigation section at Holland & Knight, one of Florida’s biggest law firms — died on Saturday from complications of a bone-marrow transplant at a Houston hospital.

Holland & Knight’s Miami office notified employees of his death on Monday morning, describing Hogan as a “lawyer’s lawyer” who devoted his life to putting others before himself.


“His exemplary public service was a testament to his selfless approach throughout his professional career,” the firm’s managing partner, Steven Sonberg, wrote to Holland & Knight’s employees. “Wherever he worked, John was recognized as a ‘lawyer’s lawyer,’ that is, he was known both for his keen intellect and for his ability to offer practical solutions to complex problems.

Electronics in court

The Manafort trial is starting up, and the lawyers involved in the case are filing motions requesting the ability to bring in their laptops (apparently they won’t be able to bring in their phones). Jurors, witnesses, reporters, and observers won’t be able to bring their phones into the proceedings. The electronics policy is just absurd. At least lawyers can bring in their phones here in the Southern District of Florida. But the public should be able to bring their phones as well. It denies the public access to the courts and it also is more unsafe to deny people their phones in case of emergency. Phones are permitted in state court and the sky hasn’t fallen.

The Highest Court in the Land

That's the title to this very fun piece in Sports Illustrated about the basketball court above the courtroom in the Supreme Court.  Here's a cool story from the article:

Directly above the nation's most important tribunal is another type of court, where victors emerge not with five votes and a majority opinion but with 21 points and a margin of at least two. Yes, on the fifth and top floor of the glorious, neoclassical edifice on First Street NE is a basketball court. A pair of plexiglass backboards (wood until 1984) hang from the ceiling, which is just 14 feet and four inches above the playing surface, a pristine hardwood installed during a 2015 renovation. At roughly 78 feet long and 37 feet wide, the court is smaller than the regulation 94-by-50 feet, with walls hugging the sidelines and the eagle of the Supreme Court seal spreading its wings across midcourt. Near the entrance a sign warns: PLAYING BASKETBALL AND WEIGHT LIFTING ARE PROHIBITED WHILE THE COURT IS IN SESSION.
If the gym seems an afterthought, that's because it was: The building's architect, Cass Gilbert, designed the room for storage. At an unknown point in the 1940s—the building opened in 1935—an unknown person transformed it into a gym. According to the 1965 book Equal Justice Under Law: The Supreme Court in American Life, Cass Gilbert Jr. suggested the makeover, but the Supreme Court curator's office hasn't verified that account. Early on, Justice Hugo Black used the room as a makeshift tennis court, but basketball has become the house game. Security guards, cafeteria workers, clerks, librarians and the occasional justice head upstairs for ragged games of pickup. The original floor was concrete and unforgiving, the room cramped and the ceiling far too low—but that has only added to the quirky charm of what's known as the Highest Court in the Land.
As a clerk Tilleman was thrilled to have easy access to hoops. He started playing regularly with his fellow clerks and others, even though the low ceiling neutralized his long-range shooting. But more than anything, he wanted to run with Thomas. For months he badgered the justice to no avail.
Finally, in April, Thomas agreed to a game with his clerks, who included future Fox News host Laura Ingraham (of "shut up and dribble" fame). They were thrilled, especially after the justice showed he could ball. Thomas, who joined the Court in 1991, was 44 at the time, and Tilleman was struck by the skill of the most junior member. But after a half hour of hooping Thomas grabbed his left leg and fell to the ground, writhing on the floor. This is not happening, Tilleman thought in horror.
Thomas had torn an Achilles tendon. He underwent surgery, and the following week he was hobbling around the building on crutches. As the term came to an end, Thomas and Tilleman had a picture taken together. The justice told the photographer to make it a full body shot, so that it would include his walking cast.
"Karl," he whispered to his clerk with a smile, "I want you to remember for the rest of your life what you did to me." Tilleman, now a partner at a law firm in Phoenix, has the portrait hanging in his office, above his computer—next to a picture of himself being guarded by Michael Jordan.

GUEST POST: Ruling by Court Fits Legal & Political Pattern of Favoring Property Rights of Original Owners of Antiquities

Ruling by Court Fits Legal & Political Pattern of Favoring Property Rights of Original Owners of Antiquities

 

Guest Post By: Lindsey Lazopoulos Friedman

Finders are not keepers when it comes to state property. A District Court in the Middle District of Florida held that France is entitled to claim ownership to a French ship that sunk off of Florida’s coast nearly 500 years ago, even though a Tampa-based marine exploration company found the shipwreck.

Global Marine Exploration, Inc., discovered a shipwreck off the coast of Cape Canaveral and brought suit in the Middle District of Florida seeking possessory and ownership claims pursuant to the archaic “law of finds” and also sought declaratory and injunctive relief to establish its ownership claim. The Republic of France argued that the subject ship was La Trinite, the flagship of the French Royal Fleet sunk in 1565 by a hurricane, and that it had never abandoned its sovereignty over the ship.  

The State of Florida also claimed an ownership interest in the ship, arguing that it supported France’s claim, but added that it had a subordinate claim because the ship lay in Florida’s submerged territory.

After several years of legal warfare between Global Marine, Florida, and France, the Middle District sunk Global Marine Exploration’s ability to establish ownership over its find. The Court reasoned that it lacked subject matter jurisdiction to grant relief to Global Marine Exploration because the ship is indeed La Trinite, and thus, is sovereign and immune from Global Marine Exploration’s claims.  Global Marine Exploration’s deadline to appeal the Court’s decisions to the Eleventh Circuit was July 25, 2018. 

The Court’s findings fall into a recent array of decisions by U.S. and International courts favoring original ownership or property interest over claims such as good-faith purchaser, found-in-the-ground, or abandonment.  For example, an Italian Court ruled last month that the J. Paul Getty Museum must return its most-prized antiquities, the Greek bronze “Statue of a Victorious Youth,” which was found off of the coast of Italy in 1964.  The New York Supreme Court ruled this week that an ancient Persian sculpture, valued at $1.2 million, must be returned to Iran from good-faith purchasers unaware that the sculpture had been stolen in 1936.  And, the Metropolitan Museum of Art was ordered to return a 2,300-year-old vase after evidence was presented that the vase had been illegally excavated.  While legal precedent favoring original owners of works of art has become well-developed due in large part to restitution of Nazi-era looted art, the cases mentioned above and others demonstrate a new pattern of substantive legal decisions favoring original property interests in antiquities.  Similarly, political policies have followed suit; President Emmanuel Macron of France recently announced that he plans to repatriate African artifacts in French museums to their origin nations.

The case is Global Marine Exploration, Inc. v. The Unidentified, Wrecked and (For Finders-Right Purposes) Abandoned Sailing Vessel, No. 6:16-cv-01742-KRS (M.D. Fla.)

So you want to be a magistrate judge?

The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida at Miami.  The term of office is eight years.

A full public notice for the magistrate judge positions is posted on the Courts Internet website at: http://www.flsd.uscourts.gov.   One position initially will be assigned for a period not to exceed three years to supervise the Court's Pro Se Prisoner Division.  

Interested persons may contact the Clerk of the District Court for additional information and application forms.  The application form is also available on the Courts website http://www.flsd.uscourts.gov. Applications must be submitted only by applicants personally to: Flsd_magistratejudgerecruitment@flsd.uscourts.gov by 5:00 p.m. on Wednesday, August 22, 2018.

Why aren't there more written decisions on sentencing?

For as long as I can remember, the culture in this District is for sentencing decisions to be announced and discussed in open court at sentencing. This isn't the case in other Districts, where judges frequently write lengthy orders explaining their decisions.

 Here is a recent example from the District of Colorado where the judge rejected the prosecutor's request for a 15-year sentence for a person who wrote a $300 check intended for a terrorist organization. The judge also rejected the guidelines and sentenced the defendant to time-served (which was a significant amount of time). He had some interesting lines in the Order:

In over forty years of judging I have never imposed a harsher sentence because a defendant asserted his right to trial by jury or to testify at that trial. I am not about to do so now or in the future. I consider any trial “tax” or penalty to be contrary to the ages-long values and standards of our legal system. It is more closely associated with the jurisprudence of Russia, as described by Dostoyevsky, than our own tradition as described by Benjamin Cardozo. In that vein, application of the Obstruction of Justice Enhancement here would be a violation of the concepts of justice and of ordered liberty.

Kudos to Judge Kane for this thoughtful order.  After all, the judiciary is meant to be a check on the executive branch, who never requests a sentence under the guidelines except in cooperation cases.  Section 3553 calls for the guidelines to be just one factor at sentencing. But prosecutors, all these years after Booker, still see that as the only factor. 

Nominations of Judges Ruiz, Altman, and Grant moving forward

Each one had a different vote out of the judiciary committee. Justice Grant (nominated to the 11th Circuit) moved forward with a vote of 11-10 on party lines. Rudy Ruiz (SDFLA) moved forward with a unanimous yes vote. And Roy Altman (SDFLA) had a 17-4 vote to go ahead. From Courthouse News:

Roy Altman, a partner at the Miami firm Podhurst Orseck who is up for a seat on the U.S. District Court for the Southern District of Florida, was the only federal district court nominee to receive any opposition from senators on Thursday.

In questions submitted in writing after his nomination hearing, Altman faced questions about public statements he made and articles he published regarding hot-button political and legal issues from the Fourth Amendment to the Iran nuclear deal.

In one article, Altman argued a cell phone should not be treated differently than a briefcase when a court considers whether a search was appropriate, “simply as a result of the amount of information they are capable of storing.” When Feinstein asked him about the article, Altman said a recent Supreme Court decisions showed him he was wrong.

“After the Supreme court’s decision in Riley [v. California], it is now clear that the amount of information stored by a cellphone is relevant to a determination of how much protection is afforded by the Fourth Amendment,” Altman wrote. “If I were fortunate enough to be confirmed, I would fairly and faithfully apply this precedent.”

Altman cleared the committee 17-4 on Thursday.

The committee also unanimously approved Jude Rodolfo Ruiz, who is nominated to a seat on the U.S. District Court for the Southern District of Florida, and Raul Arias-Marxuach, who is up for a seat on the U.S. District Court for the District of Puerto Rico.

All of the judges the committee approved on Thursday must still be voted on by the full Senate before they are confirmed.

News & Notes.

1. 11th Circuit Judge Robin Rosenbaum, known for her fun writing style, starts an opinion this way:

To say that the 1980 United States Men’s Olympic Hockey Team had the odds stacked against it would be an understatement. With a roster of amateur players whose age averaged 22, the U.S. team had been routed 10-3 by the Soviet team less than two weeks before the Olympics began.1 And that was not surprising since the Soviet team was filled with seasoned professionals, had won the past four Olympic gold medals, and had not even lost an Olympic game since 1968.2 Beating the Soviet team seemed impossible. Yet on February 22, 1980, the U.S. team—led by Coach Herb Brooks—did exactly that, scoring a 4-3 “Miracle” win.3
Our history contains many such stories of triumphs over long odds. This, however, is not one of those.
Plaintiffs-Appellants—a lawyer, his law firm, and associated parties—urge creative arguments to avoid their bank’s compliance with Internal Revenue Service (“IRS”) summonses for their account records. But forget about tough odds the U.S. hockey team faced, Plaintiffs face-off with something even more formidable: the Supreme Court’s holdings long ago in United States v. Miller, 425 U.S. 435 (1976), and United States v. Powell, 379 U.S. 48 (1964). Those cases completely foreclose Plaintiffs’ arguments. For this reason, neither Plaintiffs nor their law-firm clients whose interests Plaintiffs attempt to invoke have a viable Fourth Amendment objection to the IRS’s collection of Plaintiffs’ bank records from Plaintiffs’ bank. We therefore affirm the district court’s order denying the quashing of the IRS’s summonses.

2. Trump is getting appellate judges confirmed at an incredibly fast clip. From the Hill:

Senate Republicans broke a record on Wednesday for the number of appeals court judges confirmed during a president's first two years.

Senators voted 50-49 on Andrew Oldham's nomination to be a judge on the 5th Circuit, making him Trump's 23rd circuit court judge confirmed since he took office last year.

That breaks the previous record set by President George H.W. Bush, who got 22 appeals court judges confirmed during his administration's first two years.

These are young, smart, and conservative judges who will make a real change in our judiciary.

An only in Miami story covered by an only in Miami reporter

Dave Ovalle has the only-in-Miami story about men being promised anonymous sex with a bored housewife only to end up appearing on a porn site for cross-dressing men.  The Feds have arrested Bryan Deneumostier, 32, also known by the screen name “susanleon33326," on charges that he surreptitiously produced pornographic audio and video recordings of himself engaging in sexual activity with multiple men and then caused the videos to be posted on one or more subscription-based pornography websites without their knowledge or consent.

I'll let Ovalle tell you the story:

The men thought they were going to a South Miami-Dade house for a casual and clandestine tryst with a bored housewife.

Once there, the men agreed to be blindfolded, and for sex acts to be performed on them. What the victims did not know, federal agents say, is that the supposed housewife was a cross-dressing man named Bryan Deneumostier — and he was uploading the videos to a porn website and charging users to view them.

Federal agents late Tuesday arrested Deneumostier, 33, of Homestead and charged him with five charges related to the operation of “StraightBoyz,” which promised gay men videos of real straight men being conned into accepting sex acts, all while blindfolded or wearing blacked-out goggles.

Investigators believe Deneumostier ran the site for at least four years. It featured at least 600 videos. Although the website is no longer in operation, many of the videos are still viewable on other adult websites. Agents are still trying to figure out how many of the people depicted on the site may be victims, never knowing their rendezvous were being recorded and uploaded to the web.

From the USAO press release:

The indictment, which was unsealed July 18, references three victims whose identities are being withheld to protect their privacy. Without two of the referenced victims’ knowledge or consent, Deneumostier allegedly recorded his sexual encounters with them, and then caused these videos to be posted on one or more websites. These two allegedly nonconsensual recordings form the basis of the surreptitious-recording charges. The indictment further alleges that Deneumostier was a producer of pornography, used performers portrayed in a visual depiction of sexually explicit conduct, and did not ascertain the performers’ identification or age, as required by federal law.

Sasha Baron Cohen is back

The new show is Who is America?

It reminded me of Ali G talking to Judge Pickles about the 5th Amendment and also to Dick Thornburgh.








If you came here looking for some real law, here's a 6th Circuit opinion, affirming a conviction where the prosecution used a selfie of a defendant with a gun (via Courthouse News):

The Sixth Circuit ruled Tuesday that a Tennessee man is not entitled to a new trial for being a felon in possession of a firearm because Facebook photos apparently showing him with guns were properly admitted into evidence.
In a 40-page ruling penned by U.S. Circuit Judge Karen Nelson Moore, the Cincinnati-based appeals court rejected Malik Farrad’s challenge to his conviction and 15-year sentence as an armed career criminal.
Tuesday’s ruling upheld a federal jury’s verdict finding him guilty of being a felon in possession of a Springfield Model XD .25 caliber semiautomatic pistol based on Facebook photo evidence and expert analysis.
According to court records, Farrad was released from prison in January 2013 for a previous felony and within months, local law enforcement was notified by confidential informants and concerned citizens that Farrad possessed one or more firearms while living in Johnson City, Tennessee.
A Johnson City police officer used an undercover account to send a friend request to a Facebook account purportedly created by Farrad, where he came across a photo uploaded by the account in October 2013 that showed what appeared to be three handguns “sitting on a closed toilet lid in a bathroom.”
The officer used the photo to get a search warrant of Facebook records associated with the account. The search revealed other photos that showed “a person who looks like Farrad holding what appears to be a gun” and others depicting “a closer-up version of a hand holding what appears to be a gun,” according to the Sixth Circuit’s ruling.
“While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken,” the opinion states.