Former UM professor Bruce Bagley sentenced to 6 months

One of the country's most thoughtful sentencing judges, Jed Rakoff, had the case.  From the NY Times:

Prosecutors had argued for a sentence below guidelines of 46 to 57 months, but did not specify exactly how much lower. In court papers this month, prosecutors said that although Dr. Bagley’s age and health should be taken into consideration, some incarceration was necessary to serve as a deterrent.

In court on Tuesday, Judge Rakoff said that a sentence of up to five years, as recommended by federal guidelines, would be “irrational” and “overly punitive,” according to The A.P. But like prosecutors, the judge said some incarceration was needed. The judge recommended that Dr. Bagley’s sentence be served in a medical facility, according to a Justice Department spokesman.

According to prosecutors, Dr. Bagley opened a bank account in Florida under his company’s name, Bagley Consultants, in 2016. But there was hardly any activity in the account until a year later, when he started receiving large deposits from bank accounts in the United Arab Emirates and in Switzerland.

Those accounts ostensibly belonged to a food company and a wealth management firm but were actually controlled by a Colombian national whose money came from “the proceeds of foreign bribery and embezzlement stolen from the Venezuelan people,” according to an indictment.

Dr. Bagley knew the source of the money and entered into “multiple sham contracts” in order to conceal it, according to the indictment.

After each deposit, Dr. Bagley would go to his bank and get a cashier’s check for about 90 percent of the money, which he would then give to another individual, and wire the rest to his personal bank account, the indictment said.

In October 2018, the bank closed the company’s account because of suspicious activity, according to the indictment. But Dr. Bagley opened another account in his name that December and continued the scheme until April 2019, receiving at least 14 illegal deposits, prosecutors say.

Though Dr. Bagley lives in Florida and the laundered funds were sent to Florida banks, prosecutors said they were prosecuting the case in Manhattan because the money passed through New York City as it came from abroad.

 Law360 also covered the case, and included this awesome statement by Judge Rakoff:

Prosecutors asked for prison time below Bagley's non-binding federal guidelines range of 46–57 months, while the defense had asked for time served, citing the 75-year-old's age, pulmonary nodules, diabetes and hypertension in a heavily redacted sentencing submission.

The judge said prison was warranted to send a message of deterrence, but also acknowledged Bagley's health problems as he quipped that "some might describe" the Federal Bureau of Prisons' repeated assurances that it can handle any medical issue as "a repeated fraud on the court."

Say it ain't so

 The CARES Act is expiring on 11/25/21.  Unless it gets extended again, there will be no more video conferences for criminal proceedings.  That's bad news!  

Zoom hearings for various criminal proceedings has been really efficient and beneficial for criminal defendants and lawyers.  Here's hoping that we find a solution and that Zoom can continue for some of our proceedings.

In other news, Rumpole's blog turns 16 today.  That's an incredible run for a blog.  Head over there and wish him well.

"Why the Supreme Court needs an ethics code"

That's the title of this interesting piece by Nicholas Rostow. The introduction:

President Joe Biden’s Supreme Court reform commission has had a tumultuous past month. A draft report’s warnings about court-packing upset liberals, while two conservatives resigned for reasons that remain unclear.

Ultimately, these issues symbolize the American people’s warped views of the “highest court in the land.” Too many Americans expect justices on their “team” to legislate from the bench, rather than simply interpret the law as the Constitution requires.

The answer to this polarization is not court-packing or confirming more pro-life judges. Instead, Congress should pass an ethics code for the Supreme Court.

A code of conduct for the justices would be fair, practical, and effective. Such a nonpartisan reform would not change the fundamental structure of the court. But it would constrain the justices from conducting partisan or unethical activities that undermine public faith in the court and the law. A code of conduct could have held Chief Justice John Roberts accountable when he did not recuse himself from a 2016 case involving a company in which he owned stock. And ethical guidelines could have penalized Justice Ruth Bader Ginsburg after she told The New York Times in 2016, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”

The reality is that the American people are losing faith in the Supreme Court as a neutral arbiter. In October, the court’s approval rating sunk to 40 percent, the lowest since Gallup began tracking this statistic in 2000. Over half of Americans disapprove of the court’s job performance. But an ethics code could rebuild public faith in the judiciary at this critical time.

Our friend Fletcher Peacock

By Michael Caruso 

Our friend and colleague Fletcher Peacock has passed away. Sadly, we all have far too many reminders that life is fragile and fleeting. But this is a real gut punch. The lesson we should take and rarely do, but that Fletcher exemplified, is not to waste a moment and embrace life completely. And to Fletcher, that meant treasuring each other, whether family, friends, or colleagues.

I first met Fletcher while clerking and had the privilege to see him in action defending his clients that came before Judge Zloch. His commitment to his clients and his zealous advocacy stood out and cemented my desire to join the office.

When I first started at the FPD, I tried my first case as "lead counsel" with Fletcher by my side. Before trial, we had decided that Fletcher would direct our client. But, that morning, a critical defense witness who lived in Delray Beach--and who was going to testify after our client--had no way to get to court. Fletcher said he would get her, and I would put our client on the stand. Fletcher surely saw the look of terror that overcame me at this suggestion. But, he explained that this was best for our client and the case, and I was ready. Of course, he was half-right. I always will remember his willingness to do--without hesitation--what was best for the client and his confidence in me. 

For most of his time in Miami, Fletcher had the office next to our boss--now Judge Kathleen Williams. It was a testament to Fletcher's personality and friendship (and not the box of Goldfish he always had at the read) that his office routinely overflowed with colleagues for brainstorming or other less lawyerly exchanges. In most offices, the person who occupies the office next to the boss is quite lonely. Not Fletcher.

After Fletcher left to become the FPD in the Middle District, running into him at a conference or seminar was a highlight. He always was a welcome face, whether we would talk family, trade war stories, or celebrate/lament the Gators. Sitting next to Fletcher at these events was a prime spot because you not only obtained his insight as a seasoned lawyer and manager, but you also laughed yourself silly at his dry wit.

We were very, very fortunate to have Fletcher come back to our office. Although older, he was still the same committed and zealous advocate, but more importantly, the same friend. Rest in peace, Fletcher. 

News and notes

1. The Rittenhouse trial.  Lots of talk about the defendant taking the stand and the tongue lashing that the state is getting throughout the trial.  But how about the judge not understanding how zooming works on an ipad.  Oh boy: 

The man responsible for overseeing the Kyle Rittenhouse murder trial has some questions about how iPad's pinch-to-zoom feature works, and he’d really like an expert witness to explain it to him. On Wednesday, Judge Bruce Schroeder disallowed Kenosha County prosecutor Thomas Binger from showing evidence on an iPad that would require the use of the built-in zoom feature. The reason? Well, as Judge Schroeder tried and failed to articulate, maybe pinching and zooming, you know, does stuff to change the image?

"What [the defense is] saying, I think, and I know less than anyone in the room, I'm sure, about all of this stuff, but I'm hearing him to say that they are actually artificially inserting pixels into there, which is altering the object which is being portrayed," observed the judge.

This, as anyone who uses a modern smartphone knows, is not how pinch-to-zoom works. But, in the hopes of explaining it to the judge, we reached out to Apple for its thoughts on this technical dilemma.

We received no immediate response. Which is too bad, as Judge Schroeder really wanted someone to explain it to him.

"You're the proponent," he told the prosecutor, "and you need to assure me before I let the jury speculate on it that [pinch-to-zoom] is a reliable method that does not distort what is depicted."

The judge's dumbfounding technical obliviousness kicked off when Rittenhouse’s defense attorney, Mark Richards, also admitted he didn’t understand what he was talking about. You can watch the jaw-dropping exchange, starting around the the 5 hour, 2 minute and 26 second mark, in the below video uploaded by the Washington Post.

 

"iPads, which are made by Apple, have artificial intelligence in them that allow things to be viewed through three dimensions and logarithms," he told the judge. 

 

Again, this was in service of Richards' effort to prevent the use of pinch-to-zoom.

2. Blogs matter.  Congress is investigating a law clerk's "a history of nakedly racist and hateful conduct."  Jerry Nadler and Hank Johnson have sent the following letter to Chief Justice Roberts.  Footnote 1 of the letter cites to posts at Above the Law about the clerk.

3. Finally, defense lawyers are trying to keep Al Sharpton out of the Ahmaud Arbery trial gallery.  Another oh boy:  

An attorney representing one of three men on trial in the deadly shooting of Ahmaud Arbery made a bizarre request Thursday afternoon when he called for the judge in the case to ban Black pastors from the courtroom gallery.

“We don’t want any more Black pastors coming in here,” Kevin Gough, who represents William “Roddie” Bryan, told the judge before the jury returned from their lunch break.

The Brunswick attorney for the man who recorded the cellphone video of Arbery’s death has repeatedly taken issue with the ongoing demonstrations on courthouse grounds during the widely publicized, racially charged trial.

Gough was referring to an appearance by the Rev. Al Sharpton, who sat in on some of Wednesday’s court proceedings and held a lunchtime prayer vigil outside the courthouse. During his remarks on the courthouse steps, Sharpton criticized the racial composition of the nearly all-white jury overhearing the case, calling it “an insult to the intelligence of the American people.”

 

What can stop the death penalty at the Supreme Court?

 Not much as we have seen in recent years.  But now the ultra-conservative Court has a religious liberty challenge that has the Justices all twisted.  From SCOTUSblog:

The Supreme Court on Tuesday appeared divided over a Texas inmate’s plea to have his pastor touch him and pray out loud while he is being executed. The justices have wrestled with the question of spiritual advisers at executions for two and a half years, but Tuesday’s oral argument in Ramirez v. Collier was the first time that they heard argument on the right of inmates to receive religious comfort and guidance in their final moments. The justices weighed the inmates’ religious rights against the state’s concerns about security and its desire to have the execution proceed smoothly, as well as their own worries about the prospect of endless last-minute litigation by inmates facing execution.

Arguing on behalf of inmate John Ramirez, lawyer Seth Kretzer told the justices that, before changing its policy in 2019, Texas had carried out hundreds of executions in which spiritual advisers were allowed to touch the condemned inmate and pray out loud.

Chief Justice John Roberts pressed Kretzer on the limits of his rule. Is it enough, Roberts asked, that Ramirez’ pastor, Dana Moore, touch him anywhere on his body, or does he have to touch him somewhere specific? When Kretzer responded that anywhere on the inmate’s body would be fine, Roberts inquired whether his answer would be different if an inmate’s religion required the spiritual adviser to touch the inmate on the forehead, for example, or the heart? Kretzer indicated that it would be a closer case, but that both of those body parts were still not located near the place where an IV would be inserted.

Justice Brett Kavanaugh suggested that any form of touching could pose a problem because the lethal injection process is delicate and complex. Kavanaugh pushed back against Kretzer’s contention that Texas had repeatedly carried out executions with spiritual advisers touching inmates, telling him that such examples “don’t move me at all” because those chaplains had been state employees. Kavanaugh was more worried, he said, about “someone from the outside,” like Moore, “coming in.” Kavanaugh returned over and over again to the idea that the state was trying to reduce the risk of having something go wrong in the execution. Allowing a spiritual adviser to touch the inmate during the execution, Kavanaugh contended, will increase that risk.

Kavanaugh voiced a related concern when Kretzer told Roberts that courts should analyze a state’s failure to provide the religious accommodations that an inmate requests on a case-by-case basis. A ruling in favor of Ramirez, Kavanaugh complained, would mean that similar claims would be “a heavy part of our docket for years to come.”

Justice Samuel Alito echoed Kavanaugh’s alarm at the prospect of “an unending stream of” litigation, coming to the Supreme Court at the last minute to delay executions.

Justice Clarence Thomas suggested that Ramirez might have been “gaming the system” because he had “changed his request a number of times.” If that is the case, Thomas asked Kretzer, how should courts determine whether his religious beliefs are sincere?

Kretzer pushed back against the premise of Thomas’ question, telling the justices that Ramirez has “always asked as quickly as possible” for relief and that his religious beliefs are both sincere and “consistently stated.”

Justice Amy Coney Barrett, who in February 2021 provided a key vote to block the execution of an Alabama inmate who wanted to have his spiritual adviser in the execution chamber with him, was more sympathetic to Ramirez. Responding to Kavanaugh’s characterization of the state’s interest in barring touch and prayer by spiritual advisers as one that reduces the risk of something going wrong, she pushed Kretzer to disagree – and in so doing, appeared to signal her own disagreement. The real compelling interest, she suggested, is prison security or “carrying out the execution in a humane and safe way.”

Cert grant in another outlier 11th Circuit case

 The 11th Circuit is way out there on criminal cases -- it is, by far, the most conservative court in the country.  It's no surprise that the Supreme Court has granted cert again to fix what the 11th has done in this doctor case, Ruan v. United States.

In that case, the doctor wanted to raise a good faith defense to his pain medication prescriptions.  The district court refused to give him a subjective (or even an objective) good faith instruction.  The court of appeals said that if the doctor was acting outside of appropriate medical care, that was all the government needed to prove, regardless of whether he was acting in good faith or not.  Every other circuit disagrees with this approach and requires a good faith instruction (some circuits say subjective good faith and some say reasonable good faith).  The Supreme Court granted cert on this question:

Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he “reasonably believed” or “subjectively intended” that his prescriptions fall within that course of professional practice.

I give our 11th Circuit judges the benefit of the doubt (I'm sure they are acting in good faith!) but it's disheartening that they rule against defendants more than any other court out there.  The Supreme Court will certainly reverse this case... in the meantime, how many well-intentioned doctors have gone to prison because of outlier appellate court? 

Linda Lopez has her Senate Judiciary hearing

Linda Lopez took the next step in becoming a district judge today with her judiciary hearing.  Hopefully she will get her floor vote by the end of the year.  We are all rooting for her!

Another person with Miami roots was nominated today: 

Judge Cristina D. Silva: Nominee for the United States District Court for the District of Nevada
Judge Cristina D. Silva has served as a judge on the Eighth Judicial District Court, Department IX, in Las Vegas, Nevada since 2019. From 2011 to 2019, Judge Silva served as an Assistant United States Attorney in the United States Attorney’s Office for the District of Nevada. Judge Silva held numerous leadership positions in the office, including Chief of the Criminal Division from 2018 to 2019 and Deputy Chief of the Criminal Division from 2013 to 2018. From 2007 until 2010, she worked as an Assistant State Attorney in the Miami-Dade State Attorney’s Office, serving as Assistant Chief of Litigation for the Domestic Violence Unit in 2010. Judge Silva received her J.D. from American University Washington College of Law in 2007 and her B.A. from Wellesley College in 2001.

And finally, Magistrate Judges in Miami are dumping Zoom for duty calendars (not other hearings). Starting on Monday, all future duty hearings will be in person. This is too bad as I thought that the quick status hearings were great by Zoom.

"Justice Department wrong to encourage prosecutions it's fearful of losing"

That's the title of my latest piece in The Hill.  Below is the introduction.  Would love your feedback.

The American Bar Association held a big shindig down in Miami last week, with hundreds of white-collar criminal defense lawyers gathering to get up to speed on developments in the law. Because of COVID, it’s been a while since everyone was able to get together in person. The event is known for panels that include top government officials explaining the future of white-collar prosecutions and what is to be expected in the coming years. This conference was no different — in fact, Deputy Attorney General Lisa Monaco gave the keynote address on corporate crime.

Her speech included a comment that jumped out to me and should be a serious cause of concern for white-collar criminal defense lawyers. While recognizing that “cases against corporate executives are among some of the most difficult that the department brings, and that means the government may lose some of those cases,” she explained that “the fear of losing should not deter [prosecutors].”

But the fear of losing is exactly what should deter prosecutors from bringing the weight of the criminal justice system against an individual.

The mere filing of a criminal case against a corporate executive will likely lead to that person’s firing, financial ruin, inability to work, reputational harm, emotional scarring, and the like — even if the individual is eventually exonerated. Filing a criminal case should be no small matter.

There's a new guideline manual!

 

We haven't had a new one since the red 2018 version because we haven't had enough Sentencing Commissioners.  Now we have the blue cover with yellow lettering.  The sole Commissioner, Charles Breyer, wrote a letter explaining what's up:

"As many of you know, since early 2019, the United States Sentencing Commission has been operating without the quorum of four voting members required by statute to promulgate amendments to the sentencing guidelines, policy statements, and commentary...

The Commission has received feedback indicating that hard copies of the 2018 Guidelines Manual are significantly worn and that there is a limited supply of new copies available. In addition, the Commission has identified the need to update Appendix B, the accompanying volume to the Guidelines Manual that compiles the principal statutory provisions governing sentencing, the Commission, and the drafting of sentencing guidelines. Congress has amended several of the statutory provisions contained in Appendix B since the Commission released the 2018 Guidelines Manual.

As acting chair of the Commission, I am pleased to transmit this edition of the Guidelines Manual..."

You can listen to Judge Breyer discuss sentencing and other issues on my podcast here.

Big ABA White Collar Conference in Miami

 The annual White Collar Conference is back on after the COVID pause.  It's being held at the Miami Hyatt.  Typically 1,500 lawyers descend in Miami and try to fit in at all of the clubs on Brickell and Miami Beach.  This year, though, only about 500 lawyers are here. 

In addition to COVID-anxiety, many have speculated that attendance isn't at normal levels because of the ABA fight with the Florida Supreme Court over CLE credits.  Florida Bulldog covers it here:

The Florida Supreme Court seems to be buffing its ultra-rightist image by picking a fight about diversity with Florida Bar leaders and the American Bar Association.

Propelling it all is a controversial 1978 U.S. Supreme Court decision that outlaws “reverse discrimination,” Regents of the University of California v. Bakke. Florida’s high court is resurrecting Bakke to suggest that a diversity policy is really an unfair quota intended to displace white men in favor of women and minorities.

Traditionally the court wields its power over the Florida Bar only after weighing all sides of an issue. It takes in facts and opinions from the legal community, then makes or changes rules for everything from lawyer discipline to divorce procedures.

Not this time. The subject is Continuing Legal Education (CLE), the tightly regulated system that licensed lawyers use to keep up with developments in their practice areas.

In an unusual move, the justices accepted no input before rejecting a pro-diversity policy for CLEs that was recently adopted by the Bar’s Business Law Section, copying a 2017 ABA guideline. Both set numerical goals for CLE faculties so they represent all races, genders, ethnicities and viewpoints.

“We don’t exclude anybody from participating in the panels,” ABA President Patricia Lee Refo has explained. “What we do, where necessary, is to expand the size of the panel to include nontraditional voices.”

Although no white male Florida lawyers had reason to complain about getting kicked off Continuing Legal Education panels, the Florida Supreme Court decided to strike down the diversity policy on its own. Not a single self-identified injured party presented a “case or controversy,” the standard trigger for litigation.
Court: ‘Quotas’ taint Continuing Legal Education

The court’s April 15 ruling prevents Florida lawyers from earning CLE credits for ABA courses. According to a majority of the justices, the courses are corrupted by “quotas” just like Business Law Section courses would have been under the rejected policy.

“It is essential that The Florida Bar withhold its approval from continuing legal education programs that are tainted by such discrimination,” the court declared in its unsigned opinion.

Sentencing Commission trying to pull a fast one on district judges

 This is crazy.  The Sentencing Commission released a sentencing tool called JSIN so that judges can see average sentences before making a decision.  The problem -- the statistics exclude all sentences in which the judge did not impose incarceration.  Michael Yeager discusses the flawed data in this article at Law360:

First, JSIN excludes all sentences for cooperating witnesses, meaning cases in which the government filed and the court granted a Section 5K1.1 motion for a substantial assistance departure....

Second, JSIN includes mandatory minimum sentences, which by definition are not examples of how judges have exercised discretion. In fact, they're the opposite....

Third, and most important, JSIN excludes all nonimprisonment sentences: not just nonimprisonment sentences due to a Section 5K1.1 motion, or application of Section 5K3.1's safety valve, but rather all nonimprisonment.  That is, all sentences that are probation only, fine only, alternative confinement only (such as home confinement) or any combination of those options that doesn't also include prison time.

At positions on the sentencing table where the range is zero to six months, that means that JSIN is excluding sentences within the advisory range.  And even at many higher positions on the sentencing table, a substantial portion of cases are nonimprisonment.  Yet, JSIN excludes all of them from its averages and medians.

The effect of these choices can be dramatic. When JSIN is queried for stats on the position of the sentencing table for U.S. Sentencing Commission Section 2T1.1 — tax evasion, offense level 17 and criminal history I — JSIN reports the median sentence as 18 months.  But when one uses the commission's full dataset to calculate the median on that same cohort (Section 2T1.1, level 17, history I, no 5K1.1) and includes sentences of probation, the median is significantly lower.  Instead of JSIN's 18 months, the median is just 12 months. That's a whole six months lower — and a 33% decrease....

[B]y conducting a more complete study of the Sentencing Commission's data than the JSIN provides, the defense could also examine particular aspects of a guidelines calculation, such as loss or drug weight.  The defense could strip out mandatory minimum sentences or do an analysis of 10 or 15 years of cases, not just five.  They could also break down cases by circuit or district, not just nationally.  Now that JSIN is available, defense attorneys should consider all the above.  It was already a good idea to use accurate and complete data analysis of similarly situated defendants. But now the need has increased. The defense now has to counter JSIN and the false impression it creates.

Supreme Court new argument style

 The Supreme Court has a new argument format, as detailed in this Court guide to oral advocates on page 7.  Jonathan Adler explains it here:

The Supreme Court has been utilizing a new oral argument format this term. Audio of the arguments is streamed live through the Court's website. Advocates get a brief opportunity to introduce and frame their case, followed by a period of open questioning, followed by an opportunity for each justice, in order of seniority, to ask additional questions they may have. ... The new format seems to result in longer arguments, but also more probative ones, and live audio is great.

One interesting development with the new format is that Justice Thomas has asked the first question in the vast majority of arguments thus far. Indeed, as of yesterday, Justice Thomas had asked the first question to all but one of the advocates so far this term. This is a positive development, as Justice Thomas' questions are good ones.

That last part about Justice Thomas now asking questions has been really interesting.  Many have said that he really enjoyed asking questions during the telephonic arguments where questioning would go in order of seniority.  And because he liked it, he likes to get his questions in first after the advocates finish their brief introduction.

Justice Sotomayor explained that the format of questioning changed because the female Justices were getting interrupted more often than their male counterparts.   

Shame on you prosecutors. Shame.

 Prosecutors were very bad in a recent trial before Judge Cooke. So bad, the 11th Circuit called them out:

More broadly, however, I feel compelled to address the  prosecution’s conduct and the tactics it employed throughout the trial. The prosecution fell short of the high level of professionalism that we expect prosecutors to embody, even if their actions did not rise to the level of misconduct. An unfortunate but notable feature of this trial was that the district court exerted considerable time and energy corralling the prosecution’s often wayward tactics. Starting in voir dire and continuing through the testimony of multiple witnesses, the prosecution frequently appeared to ignore the court’s rulings when it disagreed with them, eliciting remarks from the court including:

• “Counsel, you know that’s improper.”
• “[W]hy would you go there?”
• “We went over this. . . . I may be wrong, but I ruled. Let’s go.”
• “We’ve had this conversation through other witnesses. Counsel, move on.”
• “We did this yesterday. I’m not revisiting. Anybody [who] wants to go back to the transcript, can.”
• “I don’t know . . . how many other languages to speak to you. . . . I said how to proceed. Proceed that way.”
• “What you have to do is to remember we have had some rules in this trial and somehow they seem to have been forgotten.”

The court’s admonitions, it seems, had little effect. After a particularly volatile exchange between a prosecutor and defense witness Miller, in which the prosecutor admitted that he lost his composure, the district court warned that he was “close” to causing a mistrial. Afterward, outside the presence of the jury, she admonished the prosecutor, telling him: “You’re better than having to go to the lowest part of your anger in order to examine this witness. . . . [Y]ou’re an experienced cross-examiner. You didn’t have to do
that. I would have expected that of someone of less experience than you.” The district court lamented that things “got very messy and uncontrolled.”

But apparently not bad enough to get a new trial or reversal. Instead of any actual consequences, the court says, in a concurrence by all three judges, that the prosecutors shouldn't do this again.  

Ha!  

Nothing is going to change regarding the epidemic of prosecutorial misconduct until there are some consequences.  I mean, the prosecutors in this case aren't even named in the opinion.  Defendants receive obstruction enhancements for less.  Walks of shame are not enough...

11th Circuit changes font and format of its opinions

 You thought we only covered the bickering amongst our district judges?  No, dear readers! We also break the important news in the 11th Circuit, including that the court finally updated its font and format.  It used to look like this:

And here's the new one:

Breaking -- Ryon McCabe is your new Magistrate Judge

 

It looks like the judges worked through their deadlock... by turning to the AO's published guidance which permits for a revote and if that doesn't result in a majority, then the Chief Judge gets to choose.  It's unclear whether the revote broke up the logjam or whether the Judge Altonaga had to make the selection, but either way, it's over.

Congratulations to Ryon McCabe, a really good guy.  We had cases against each other when we were both new lawyers (he was an AUSA and I was an AFPD).  He was also honorable and is a smart guy.  He's been in private practice for some time now and McCabe Rabin.  The FBI will do its background check, which usually takes a few months, and then he will sit in West Palm Beach.

RIP Shirley Henderson

 She covered all of the big trials in Miami back in the day.  The Miami Herald has the obit here.

She once said the cast of characters she captured in her renderings — the cops, terrorists, judges, lawyers, drug smugglers, exiles and everyday folk — was just so Miami. “This is about our mix — this is the socio-political and economical history of Miami.” Henderson’s bold pastel strokes have also been exhibited at HistoryMiami Museum in a popular exhibit in 2010, and are on permanent display at the University of Miami School of Law, the Museum of Art of Fort Lauderdale, the Polk Museum of Art in Lakeland and nationally at museums in Michigan and Ohio.

Her courtroom work even hangs on the walls of South Beach’s Joe’s Stone Crab after Jo Ann Bass bought 10 of her pieces in 1995 to hang on permanent exhibit at the landmark restaurant. “I have done every major trial in federal court for the last 35 years. These are historical documents. I think it’s very important to record the trials,” Henderson told the Herald in 2015.

 

How do federal judges break their own tie?

That's the difficult question facing the federal judges in our district right now.  

I previously reported on the short list for Magistrate Judge in West Palm Beach.  This short list was recommended by a committee appointed by our Chief Judge.  Last week, the district judges interviewed the five finalists (as is the practice in the Southern District of Florida). After the interviews, the 16 active judges voted on who would be the next Magistrate Judge.  

The usual procedure would have the announcement that very day, but strangely I didn't hear that evening who got the nod.  And my sources weren't talking.   

Now we've found out why -- the vote ended in a tie* with no tie-breaking procedure.  And no one is budging.

So now what?  Our jury of judges seem to be hung.

Any advice for our brothers and sisters on the bench?

Do we need a good Allen charge for this situation?  

Members of the Judiciary: I'm going to ask that you continue your deliberations in an effort to agree on a magistrate judge. And I have a few additional comments I’d like for you to consider as you do so. Remember at all times that no district judge is expected to give up an honest belief about the merits of an applicant. But after fully considering the interviews and application, you must agree upon a magistrate judge if you can. You should not be hurried in your deliberations and should take all the time you feel is necessary. I now ask that you retire once again and continue your deliberations with these additional comments in mind. Apply them in conjunction with all the other instructions I have previously given to you.

*I have heard conflicting stories about whether the tie is 8-8 between two candidates of 5-5-5 (with one judge not voting) for three candidates.  Because I can't get confirmation on the vote, I am not posting the names just yet.

Congrats to Judge Bob Scola for 10 years on the federal bench

 He had a nice weekend with his clerks:

And they made some pretty funny pictures:

What will trial penalty be in Varsity Blues case?

I'm sure you saw by now that the two Varsity Blues defendants who went to trial were convicted.  Via the NY Times:

Two parents were found guilty in federal court in Boston on Friday for participating in a bribery scheme to have their children fraudulently admitted as athletic recruits to some of the most prestigious universities in the country.

Gamal Abdelaziz, a former casino executive, and John Wilson, a private equity financier, were the first people to stand trial in the federal investigation known as Operation Varsity Blues.

The investigation has snared more than 50 parents, coaches, exam administrators and others in an admissions scheme that implicated college athletic programs at the University of Southern California, Yale, Stanford, Wake Forest and Georgetown. Many other wealthy parents, including some celebrities, have pleaded guilty rather than take their chances in court.

Mr. Abdelaziz, 64, was accused of paying $300,000 in 2018 to have his daughter admitted to U.S.C. as a top-ranked basketball recruit even though she did not make the varsity team in high school. Mr. Wilson, 62, was accused of paying $220,000 in 2014 to have his son admitted as a water polo recruit at U.S.C. His son did play water polo, but prosecutors said he was not good enough to compete at the university.

Mr. Wilson was also accused of agreeing to pay $1.5 million in 2018 to have his twin daughters, who were good students, admitted to Harvard and Stanford as recruited athletes.

“What they did was an affront to hard-working students and parents,” Nathaniel R. Mendell, the acting U.S. attorney for the District of Massachusetts, said in a news conference after the verdict. “But the verdict today proves that even these defendants, powerful and privileged people, are not above the law.”

This was always going to be a really hard sell to a jury, but the appeal will be fascinating because it's not altogether clear that this is an actual federal fraud crime.  Another interesting part of the case is that the government did not call its "star witness," Rick Singer, who made the tape recordings of all of the parents.  

Sentencing will also be worth watching.  DOJ has tracked every Varsity Blues case, and the highest sentence so far is 9 months and the highest sentence requested by the government has been 18 months.  Where will these two defendants end up just because they had the gall to go to trial?  Let me know your thoughts in the comments.  I have the over-under at 24 months. 

Waiting for a U.S. Attorney...

 ...while other districts get theirs.

Here's a NY Times article about Damian Williams, the first Black U.S. Attorney for the SDNY.

One night in December 2018, two dozen lawyers and judges gathered at a fashionable restaurant in New York’s TriBeCa neighborhood to welcome a new member, Damian Williams, into their distinguished fold.

Each had once been a federal prosecutor in Manhattan, running a special unit in the U. S. attorney’s office that investigated fraud on Wall Street. It was a job barely known to the public. But among New York’s corporate and legal elite, it was a position of power and influence, often shared by co-chiefs.

Mr. Williams was the latest appointee. That night, amid jocular toasts and ribbing, Judge Jed S. Rakoff read a whimsical poem in honor of Mr. Williams, gently mocking his self-effacing nature with an out-of-character boast:

“I’m now co-chief — my name is Damian,” the judge began. “Things will never be the same again.”

The judge was only teasing, but in one sense he got it right.

On Tuesday, Mr. Williams, 41, was confirmed by the Senate to be the next United States attorney for the Southern District of New York — a position whose occupants have included future judges, senators, cabinet members and a New York City mayor. The appointment would make Mr. Williams the most powerful federal law enforcement official in Manhattan and, significantly, the first Black person to lead the storied 232-year-old office.

***

“Beyond his extraordinary qualifications, Damian is the right person at this time in history to be the U.S. attorney for Manhattan,” said Theodore V. Wells Jr., a Black partner at the law firm Paul, Weiss and one of the nation’s most prominent litigators.

“It’s important for both Blacks and whites to see a person of African-American descent — especially in this time where there’s so much social unrest — in that top job,” Mr. Wells said.

David E. Patton, the city’s federal public defender, said Mr. Williams now has the opportunity to institute key reforms in the way his prosecutors charge cases, like embracing President Biden’s campaign pledge to end mandatory minimum sentences.

“This is a core issue he can tackle,” Mr. Patton said.

Another issue Mr. Williams will confront is diversity in his office: Of its 232 assistant U.S. attorneys and executives, only seven — including himself — are African American.

 

 

If I told you that a pro se defendant beat back a temporary injunction request against 4 DOJ lawyers....

 ...and gave you only one guess who the pro se defendant was, who would you guess?

Yup, you got it -- Fane Lozman.  The same Fane Lozman who has won twice in the Supreme Court.  

The PBP covers his most recent case, before Judge Middlebrooks -- who patiently presided over a 5-hour hearing:

Longtime Riviera Beach gadfly Fane Lozman this week towed his 20-foot-long floating home away from the banks of Singer Island to comply with a state court order saying that its bottom was damaging environmentally sensitive seagrasses that are protected by Florida law.

On Friday, federal officials told U.S. District Judge Donald Middlebrooks that Lozman is now running afoul of federal rules.

The floating container home, anchored in a cove south of John D. McArthur Beach State Park, poses a hazard to marine navigation and should be removed from the water immediately, an attorney for the U.S. Department of Justice said during a five-hour court hearing.

The dueling lawsuits — one filed against Lozman by the Florida Department of Environmental Protection in Palm Beach County Circuit Court and the other by the U.S. Army Corps of Engineers in federal court — has put the former U.S. Marine and self-made millionaire in an untenable position, Middlebrooks said.

“Mr. Lozman is caught between state and federal regulatory agencies,” he said.

Further, Middlebrooks said, it appears Lozman may be the victim of selective enforcement.

The Army Corps cited Lozman for last year anchoring his 910-square-foot container home on submerged land he owns off Singer Island. Yet, Middlebrooks noted, it has done nothing to force the removal of a partially submerged rusted barge that has been in the Lake Worth Lagoon for at least four years and appears to pose a far greater risk to boaters.

“I realize that there’s a fair amount of regulatory discretion that the Corps has,” Middlebrooks said. “But seeing that barge and that metal and comparing it to what Mr. Lozman has, well, there’s no comparison.”

Further, he said, living on the Intracoastal Waterway, he is no stranger to local waters.

“Going down the Intracoastal Waterway, I’ve seen more structures that pose more harm than Mr. Lozman’s stripped-down container home,” he said.

In other SDFLA news, Judge Kathy Williams presided over a civil trial last week.  The plaintiff, represented by Mark Schweikert, won $6 million against the Miami-Dade School Board.  From the Herald:

A federal jury has ordered the Miami-Dade School Board to pay $6 million to a former student of an ex-Palmetto High teacher accused of harassing and sexually abusing a string of female students. In a verdict late Friday, jurors concluded the school district, despite multiple warnings, did nothing to stop Jason Edward Meyers, a creative writing teacher. 

The verdict found Meyers “posed a substantial risk of sexual abuse or harassment to female students,” yet the district was “deliberately indifferent” in how it handled the accusations. The federal lawsuit was filed on behalf of an unidentified student in 2019. It was the second lawsuit filed in the Meyers saga — an earlier lawsuit from another former student settled for $1.1 million.

Jurors deliberated less than two hours in ruling in favor of the young woman, who was about 16 and 17 when she was groomed into having sex with Meyers on campus. Now 23, the woman testified during last week’s trial, as did several other victims. “She was one who was brave and courageous to be scrutinized in that way,” said her attorney, Mark Schweikert. “To win it in the eyes of the jurors — members of this community — is incredibly cathartic for her and for myself as her advocate.”

***

Meyers, 46, is still awaiting trial in Miami-Dade criminal court in a case involving the same victim from last week’s trial — she will have to testify again. To the frustration of his victims, the criminal trial has been pending for more than five years, because Meyers changed attorneys — and then because of the pandemic. He’s awaiting trial on three felony counts of engaging in sex with a minor. 

Meyers was not named in the federal lawsuit. “No one was interested in hearing his side of the story in that civil case,” said his criminal defense attorney, Bradley Horenstein. “Jason Meyers is innocent. Looking forward to our day in court.” 

The Miami-Dade school district, in a statement on Monday, did not say whether it will appeal.

Oyez Oyez Oyez! (UPDATED)

UPDATE -- Clarence Thomas asked the first question today in open court... so it wasn't just that he was going to ask questions telephonically.

SECOND UPDATE -- Oral arguments are live-streamed this Term!

  It's the First Monday in October, which means the Supreme Court Justices are coming back from their summer vacations.  (In addition to term limits as SCOTUS reform, I think it's time to do away with their three month break in the summer.)  So what's on tap for this Term?  Here's a good summary of the biggest cases, which address abortion and guns, from Vox:

For four decades, anti-abortion activists have dreamed of the day when the Supreme Court would overrule Roe v. Wade. That day could be just months away, as the Court will hear a case this winter asking it to destroy Roe.

The National Rifle Association, like other, even more strident gun rights groups, spent those decades dreaming of an expansive Second Amendment that sweeps even the most venerable firearms regulations into the trash bin. This fall, the Court will hear a challenge to a 108-year-old law laying out who may obtain a license to carry a firearm in New York.

A more obscure issue, but one that could have even more sweeping consequences, is the question of when federal agencies — acting pursuant to a statute enacted by Congress — may regulate private businesses and individuals. The conservative Federalist Society has long obsessed over plans to strip federal agencies of this regulatory power. This month, right-wing groups flooded the Supreme Court with briefs asking the justices to overrule a seminal precedent preventing judges from sabotaging agencies such as the Environmental Protection Agency.

It remains to be seen whether the Supreme Court, with its 6-3 conservative majority, will make all these groups’ dreams come true. But Republican advocacy organizations of all stripes appear convinced that now is the time to shoot for the moon, and so these issues — along with a host of others ranging from anti-discrimination law to partisan gerrymandering — are on the docket this coming Supreme Court term, which starts Monday, October 4.

In other SCOTUS news:

1.    Justice Alito is fired up over the shadow docket criticism.   From the NY Times:

In a combative speech on Thursday, Justice Samuel A. Alito Jr. defended several of the Supreme Court’s recent rulings on what critics call its “shadow docket,” saying the news media had created the impression that “a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view.”

He addressed the recent decisions in unusual detail, rejecting, for instance, what he said was the “false and inflammatory claim that we nullified Roe v. Wade” in early September by allowing a Texas law that bans most abortions after six weeks to come into effect.

“We did no such thing, and we said so expressly in our order,” he said, quoting from it. Indeed, the majority in the 5-to-4 ruling said it based its decision on procedural grounds and did not address the constitutionality of the Texas law.

The effect of the ruling, however, has been to deny abortions to most women in Texas. In dissent, Justice Elena Kagan wrote that the majority’s unsigned order “illustrates just how far the court’s ‘shadow docket’ decisions may depart from the usual principles of appellate process.”

“Without full briefing or argument, and after less than 72 hours’ thought,” she wrote, “this court greenlights the operation of Texas’ patently unconstitutional law banning most abortions.”

Justice Alito’s speech, at the University of Notre Dame, was largely devoted to addressing the “shadow docket,” which he called a loaded and misleading phrase.

“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” he said. “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”

2.      Justice Kavanaugh has COVID.

3.      So he couldn't go to Justice Barrett's investiture.

Linda Lopez nominated in S.D.Cal.

 Wahooo! Really happy to post this one.

Miamian Linda Lopez, who is now a Magistrate Judge in San Diego and was an assistant federal defender before that, has been nominated to the district court in S.D. Cal.  From the White House:

Linda Lopez: Nominee for the United States District Court for the Southern District of California
 
Judge Linda Lopez has served as a Magistrate Judge on the U.S. District Court for the Southern District of California since 2018. From 2007 to 2018, Judge Lopez worked as a federal public defender in San Diego. From 2003 to 2007, Judge Lopez worked as a criminal defense attorney in Miami as a solo practitioner, where she served on the Criminal Justice Act Panel and represented indigent defendants in federal court on a court-appointed basis. Judge Lopez began her career as a criminal defense attorney in private practice from 1999 to 2003. Judge Lopez received her J.D., magna cum laude and Order of the Coif, from the University of Miami School of Law in 1999 and her B.A., magna cum laude, from Florida International University in 1996. She also received her A.S. in 1994 and her A.A. in 1992, both from Miami Dade Community College.

San Diego Superior Judge Jinsook Ohta, left, and U.S. Magistrate Judge Linda Lopez have been nominated by President Joe Biden for district judge seats for the Southern District of California.

(Courtesy of U.S. Courts and San Diego Superior Court)

Judge Beverly B. Martin

By Michael Caruso:

 

Today is Judge Beverly B. Martin’s last day of service on the Eleventh Circuit Court of Appeals. She’ll be missed.

 

I’m limited by both ability and space to do justice to Judge Martin’s work on the Court. But, I offer two brief opinions.

 

First, I’d note her work—with former Chief Judge Ed Carnes—in effectuating systemic change for the men and women on Florida’s death row. In United States v. Lugo, Judge Martin concurred in the result but wrote separately to note the “alarming” number of cases where state-appointed lawyers missed their federal habeas filing deadlines. As Judge Martin pointed out, these missed deadlines have many negative consequences, including barring a federal court from reviewing the death row inmate’s claims on the merits. Her concurrence is well worth reading to see how she addresses this issue with thoroughness, compassion, and humility. And, as a result of this opinion, we now have two Federal Public Defender Capital Habeas Units in Florida to represent these men and women in federal court.

 

Second, although Judge Martin grounded her opinions on the facts and law of the case, I believe she never forgot that these cases are about people and not abstract legal questions. Again, my space is limited, but one recent example is United States v. Bryant. In Bryant, Judge Martin dissented from the Court’s holding that limited a person’s ability to obtain a  compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons. I acknowledge that the majority’s holding has negatively impacted our clients, but I think Judge Martin was right on the law. Beyond her legal analysis, however, her opinion captures the hopes and struggles that Mr. Bryant experienced while in prison. This combination of rigorous analysis and human understanding is the mark of a great judge and person. 

Like I wrote, Judge Martin will be missed.

Sentencing Commission releases "Compassionate Release Data Report"

It's a very interesting read.  For 2020 and the first half of 2021, there were over 20,000 compassionate release motions filed.  

Our district had the highest number of filed motions (879) and right behind us was the Middle District of Florida.

However, we fell below the nationwide grant rate.  Nationwide, about 17.5% of CR motions were granted.  In our district, it was only 15.4%.  

Come on, judges... we shouldn't be lower than the national average when our sentences are traditionally higher than the national average!

Just to give a sense, the SDNY is 4th in filed motions, but their grant rate is over 20%.

Maryland is 5th, and their grant rate is 34%.

What do you think of this govt exhibit in R. Kelly case?

 As has been widely reported, R. Kelly was convicted yesterday of racketeering and sex offenses.  Racketeering?  Well, the government used the below exhibit, which has been flying around some of the listservs and has garnered lots of debate.  Do you think it was proper for the judge to admit this gov't exhibit?

News & Notes

 1. There's a lot of prosecutorial misconduct in the Southern District of Florida.  But get a load of this case out of Texas (via the AP):

Texas’ highest criminal court on Wednesday overturned a death row inmate’s capital murder conviction because one of the prosecutors in his 2003 trial was moonlighting as a clerk for the judge in the case.

The Texas Court of Criminal Appeals ruled that the arrangement between Midland County State District Judge John Hyde and then-prosecutor Weldon Petty clearly violated Clinton Young’s right to a fair trial. Young was convicted and sentenced to death in the shooting of a man during a 2001 drug-related crime rampage across Texas.

Hyde died in 2012, but Midland County prosecutors in 2019 discovered the paid arrangement between the judge and Petty, who had also been working on the side for other district judges for years.

The appeals court noted that as a prosecutor, Petty would oppose defense motions while also drafting recommendations of denial for judges to sign. As part of the legal team prosecuting Young, Petty drafted the legal motions submitted during the trial and sometimes participated in oral arguments.

Petty’s side agreement with Hyde was to perform “legal work” as a judicial clerk outside of his official duties. It paid him more $9,000 over the time spanning Young’s initial indictment, trial and post-conviction appeals, which Petty handled both as prosecutor and as clerk for the judge, the appeals court noted.

“Judicial and prosecutorial misconduct, in the form of an undisclosed employment relationship between the trial judge and the prosecutor appearing before him, tainted (Young’s) entire proceeding from the outset,” the court wrote. “As a result, little confidence can be placed in the fairness of the proceedings or the outcome of (Young’s) trial.”

Alrighty then.

2. Here's an interesting case out of the 9th Circuit that will, I'm sure, be heard by the Supreme Court. From the intro:

We once again consider the application of the Fourth Amendment’s warrant requirement to new forms of communication technology. See, e.g., United States v. Cano, 934 F.3d 1002 (9th Cir. 2019); cf. Carpenter v. United States, 138 S. Ct. 2206 (2018). “When confronting [such] concerns wrought by digital technology, th[e] [Supreme] Court [and this court] ha[ve] been careful not to uncritically extend existing precedents.” Id. at 2222.

Our question this time concerns the private search exception to the Fourth Amendment—specifically, the intersection between electronic communications providers’ control over material on their own servers and the Fourth Amendment’s restriction of warrantless searches and seizures, which limits only governmental action. See Burdeau v. McDowell, 256 U.S. 465 (1921); Walter v. United States, 447 U.S. 649 (1980); United States v. Jacobsen, 466 U.S. 109 (1984).

The events giving rise to Luke Wilson’s conviction and this appeal were triggered when Google, as required by federal law, reported to the National Center for Missing and Exploited Children (NCMEC) that Wilson had uploaded four images of apparent child pornography to his email account as email attachments. No one at Google had opened or viewed Wilson’s email attachments; its report was based on an automated assessment that the images Wilson uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent Wilson’s email attachments to the San Diego Internet Crimes Against Children Task Force (ICAC), where an officer ultimately viewed the email attachments without a warrant. The officer then applied for warrants to search both Wilson’s email account and Wilson’s home, describing the attachments in detail in the application. 

Our question is whether the government’s warrantless search of Wilson’s email attachments was justified by the private search exception to the Fourth Amendment. See Walter, 447 U.S. at 655–56; Jacobsen, 466 U.S. at 113–14. For the reasons that follow, we hold that it was not. We therefore reverse the district court’s denial of Wilson’s motion to suppress and vacate Wilson’s conviction.

Federal Bar Association Annual Meeting

 The SDFLA Federal Bar Association is hosting the big national convention here in Miami.  Last night there was a reception welcoming Judge Altonaga as our new Chief Judge.  Below is a picture (courtesy of Margot Moss) of the Chief speaking at the event, which had really cool courtroom art displayed all throughout the room.  I still think cameras in the courtroom would be a big improvement over the pictures, but it was fun to walk around and see the old drawings.  Congrats again to Judge Altonaga!

Breaking -- WPB Magistrate Judge short list

 Thanks to a great tipster, I know now that the 5 lawyers who made the short list for Magistrate Judge in West Palm Beach are:

-AUSA Brandy Galler

-AUSA Randy Katz

-Ryon McCabe, McCabe Rabin

-AFPD Penny Birch

-Patti Leonard, Shutts & Bowen

Congrats to the finalists.

Also, it turns out that I missed regular blogging more than I thought I would.  So I am going to take the reins back for a while.  I want to thank the guest bloggers for their amazing posts and the time that they spent on the blog.  They will hopefully still post, especially when I need some help.  But for now -- for better or worse -- you have me back for a while.  

More Defenders on the Bench, Please.

 By Margot Moss

Although President Biden took office with the fewest judicial vacancies for a new president in over 3 decades, nearly 50 federal judges announced their retirement since Biden's inauguration.  This nearly doubles his opportunities to appoint lifetime judges.  

With these vacancies, President Biden and his top lawyers are making an effort to increase professional and demographic diversity.  Just yesterday, Veronica Rossman, a longtime assistant federal defender, was confirmed by the Senate to the Tenth Circuit.  She will join other former federal defenders on the Circuit Bench, including Ketanji Brown Jackson (D.C. Circuit), Gustavo A. Gelpi, Jr. (First Circuit), and Eunice C. Lee (Second Circuit) - who also all happen to be individuals of color.  Still awaiting confirmation is Candace Jackson-Akiwumi (Seventh Circuit), who practiced for over 10 years as an assistant federal defender.  Former public defenders are also being appointed to the District Court bench, including Omar A. Williams (D. Ct.), Jia M. Cobb (D.D.C.), Margaret Strickland (D.N.M.), and many others. 

But we still need more!  At a time when diversity is encouraged and applauded, this should include diversity of legal background as well.

No update yet on the two openings in our District.  Note that Michael Caruso is on the list of finalists.  Not only is he the Federal Defender, but he is also a fellow blogger! 

 

Happy Autumn Equinox!  Can’t believe the year has gone by so fast. 

Judge Bloom strikes down sanctuary city ban

From the Miami Herald:

A federal judge in Miami on Tuesday blocked Florida from enforcing a ban on so-called sanctuary cities, declaring portions of a law unconstitutional and tinged with “discriminatory motives.”

The judge’s ruling struck down a key portion of the 2019 law that prohibits local and state officials from adopting “sanctuary” policies for undocumented migrants, a main focus for Gov. Ron DeSantis, who vowed to ban “sanctuary cities” in Florida when running for governor in 2018 even though there were none in the state.

The judge also blocked the state from enforcing a provision in the law that requires law enforcement officers and agencies to “use best efforts to support the enforcement of federal immigration law” when they are acting within their official duties.

But the court allowed other provisions to stand, including one that required state and local law enforcement agencies to comply with immigration detainers — federal requests to hold undocumented immigrants past their release dates so that immigration agents can pick them up.

However, the judge blocked a provision that said local and state agencies could transport detainees who are subject to an immigration detainer to federal custody outside of their jurisdiction because it is “preempted by federal immigration law and is therefore unconstitutional.”

The ruling was in response to a lawsuit filed by the city of South Miami and other organizations, including the Florida Immigration Coalition, against DeSantis in an effort to strike down the law.

“The verdict validates what we said three years ago, Governor DeSantis pushed for a law that is not just racist, but unconstitutional,” said Antonio Tovar, a board member of both the Florida Immigrant Coalition and the Farmworkers Association of Florida, another group that joined the case.

Here's the 110 page order. 

In praise of trial lawyers

By Michael Caruso

Unlike David, I'm not a naturally gifted trial lawyer. Any skill I've managed to acquire over the years is from watching and learning from my colleagues at the Federal Defender's office.  When I started, lawyers like Hector, Mary, Miguel, Joaquin, Manny, Omar, and Ken were my role models for how to try a case. And my current colleagues continue to inspire me with their grit, creativity, and ability. 

One cross-examination I saw when I was a young lawyer stands out in my memory. An assistant federal defender—Richard—was trying a case that lawyers sometimes call a "slow plea." A challenging case. 

As usual, the arresting agent wrote a report of his investigation. On direct, however, he testified to seemingly critical facts that were not in his report. When he had a chance to ask questions, Richard pressed him on these "new" facts. The agent, when confronted, responded that he had an exceptional memory and powers of recall. 

Richard reached the end of his questions. Despite his best efforts, the agent inflicted damage and Richard looked beaten. Gathering his notes, Richard turned to walk back to the table where his client sat. But, before he sat down, he returned to the lectern. 

He looked at the agent and asked: "What were the first three questions I asked you?" Richard let the "uh...." hang just long enough in the air before he sat down and said, "No further questions."

Richard's work left a lasting impression on me. His tenacity, inventiveness, and courage are all traits I've tried to emulate. 

This trial happened a very long time ago, and my memory may be faulty as to all of the circumstances. I would've double-checked with the transcript, but the jury found Richard's client not guilty, and no transcript was ordered.