Podcast Season 6 Finale -- Howard & Scott Srebnick for Michael Avenatti

 

FOR THE DEFENSE, SEASON 6, EPISODE 9 (Season Finale): Howard (above) & Scott (below, left) Srebnick for Michael Avenatti   (Nike extortion case) Brothers Srebnick have been representing lawyers since the 90s. And this case -- representing high flying attorney Michael Avenatti, who was charged with extorting Nike -- is a fascinating one, exploring what a lawyer can do during negotiations for a client. Howard and Scott are great lawyers, great friends, and I think you'll really enjoy the episode. As always, you can catch this and other episodes on the web or on every podcast platform, including Apple and Spotify.  I also want to thank all of our guests this season -- Todd Blanche, Kaitlan Collins, Judge Andrew Brasher, Sean Hecker, Judge Phil Hubbart, David Kendall, and former Attorney General Alberto Gonzales. I also want to take special note of the Chris Morvillo episode -- such an awful and sad tragedy.  It's still hard to get my head around what happened.   We will be back for Season 7 -- most likely in early 2025.  In the meantime, I would really appreciate it if you could take a second and leave a review and spread the word about the podcast. Also, this season was approved for Florida CLE credit -- the code is stated at the end of this episode. Finally, If you have a friend that would like to receive these updates, please have them sign up here. Thank you! --David Hosted by David Oscar Markus and produced by rakontur

The Department of INjustice

 You must read this opinion, especially Judge Lagoa's concurrence (joined by Judge Grant), in United States v. John Moore.  Here are some excerpts from the beginning of the concurrence:

John Moore, Jr., and Tanner Mansell are felons because they tried to save sharks from what they believed to be an illegal poaching operation. They are the only felons I have ever encountered, in eighteen years on the bench and three years as a federal prosecutor, who called law enforcement to report what they were seeing and what actions they were taking in real time. They are felons who derived no benefit, and in fact never sought to derive any benefit, from the conduct that now stands between them and exercising the fundamental rights from which they are disenfranchised. What’s more, they are felons for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in.

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For reasons that defy understanding, Assistant United States Attorney Tom Watts Fitzgerald learned of these facts and—taking a page out of Inspector Javert’s playbook—brought the matter to a grand jury to secure an indictment for a charge that carried up to five years in prison. Watts Fitzgerald decided to pursue this indictment despite the following undisputed facts: Moore and Mansell (1) called law enforcement to report what they were doing, (2) were comfortable involving their tourism customers in their actions, (3) encouraged Kuehl to record what was happening, and (4) returned the gear to the marina dock as instructed. Against the weight of all this—which, in my view, plainly suggests a good-faith mistake on Moore and Mansell’s part—Watts Fitzgerald determined that this case was worth the public expense of a criminal prosecution, and the lifelong yokes of felony convictions, rather than imposition of a civil fine.

RIP Mercury Morris

 

He was part of perfection.  From the NY Times:

Mercury Morris, who gave speed and dexterity to the rushing attack of the Miami Dolphins in the early 1970s, helping to power the team to two Super Bowls and the only perfect season in the history of the National Football League, died on Saturday night. He was 77.

His son Troy announced the death in a statement that did not specify the cause or where Morris was at the time.

During a six-year tenure with the Dolphins, from 1969 to 1975, Morris qualified for the Pro Bowl three times. 

In an insane piece of Miami history, he was charged and convicted of cocaine distribution. He tetsified in his own defense.  Judge Ellen Morphonios said after the verdict, "I feel bad for you, Merc. I'm just sorry." But then she took him into custody and later sentenced to 20 years in prison! 

Assistant State attorney George Yoss said after the verdict: "Obviously I'm very satistfied... It's a stiff punishment but the Legislature has decided that those who deal in drugs must pay the price." "We cheered when he caught the football. We booed when he fumbled,'"Yoss had told the jury. 'But he fumbled a lot more than a football game. He fumbled his life away."

The Florida Supreme Court reversed, holding that the trial court erred in not permitted Morris to present his entrapment defense.  Morris maintained his innocence.

Guest post by Vanessa Johannes

by VanessaJohannes

Though not in our District, surely by now everyone has heard about the indictment against “Diddy” or “Puff Daddy,” that is, rap mogul and business entrepreneur, Sean Combs.  The SDNY case charges Combs with three counts – RICO, Sex Trafficking, and Transporting to Engage in Prosecution.  Why is this case important – aside from the fact that a mega superstar has been charged with sex trafficking?  Because RICO does not typically accompany a sex trafficking case.  That unusual and unique charging model came from the R. Kelly prosecution.  And because “Johns,” or the men soliciting sexual services, typically do not get charged with crimes – certain not rich “Johns” who run million-dollar companies with seemingly legitimate businesses purposes and operations.  Here, the indictment charges Combs’ businesses as a conduit, or the enterprise, for pervasive and disturbing conduct towards women, stating that one of the purposes of his business was “ [f]ulfilling the personal desires of COMBS, particularly those related to COMBS' sexual gratification, including through the exploitation of women and the use of commercial sex workers.”  In many ways, the charges seem to indicate that Combs’ businesses were focused on “Freak Offs,” alleged “elaborate and produced sexual performances,” instead of producing the music and soundtracks of our 90’s youth.  The indictment is also unusual in its level of detail – indicating that the government may have extensive digital evidence and witness testimony secured.  Based on these details, earlier this week, U.S. Magistrate Judge Robyn Tarnofsky denied bond to Combs, whose lawyers offered a bail package of $50 million.   Judge Tarnofsky said she has "very significant concerns" about Combs' substance abuse and "what appears to be anger issues.”  Yesterday, Combs appeared before District Court Judge Andrew Carter Jr. on the appeal of bond.  Despite home confinement with private security monitoring him, Judge Carter denied the appeal, stating that Combs posed a risk of witness tampering and was a danger to the safety of the community.  Key to the Judge’s decision was Combs’ ability to “intimidate” witnesses unless confined - a hurdle for his defense team as they prepare for a complex trial. Certainly, there’s more to come our way on what is surely to be a case of the century.

The indictment can be found here: https://www.documentcloud.org/documents/25147299-combs-indictment-24-cr-542

 

Welcome Judge Enjoliqué Lett!

Guest Post by Stephanie A. Casey

Yesterday, Enjoliqué Aytch Lett was sworn in as the District’s newest United States Magistrate Judge.  Several district and magistrate judges attended, along with some of her family and friends.  Chief Judge Altonaga, Judge Williams, and Judge Graham each said a few words about how proud Judge Cooke would have been to see her former clerk take the oath. It was a really nice event. Judge Lett’s chambers will be on the 10^th floor of the Atkins Courthouse.

Fireworks this morning in the Donna Adelson trial (UPDATED)

UPDATE 1:20pm -- Charlie Adelson refused to waive. Rashbaum moves to withdraw, which the judge grants. Trial continued. WOW. UPDATE 10:30am -- Donna Adelson says she waives any conflict. The prosecution agrees that it is sufficient and wants Rashbaum to stay on the case.

 Dan Rashbaum is in Tallahassee about to try the murder case for Donna Adelson.  He previously represented Donna's son, Charlie Adelson.  Both waived conflicts, but last night Charlie filed a motion asking that Dan not cross examine him.  That threw the case into chaos this morning as jury selection was supposed to start. You can follow along here:

Judge Stephen Everett is hearing from lawyers on both sides about Charlie Adelson's assertion Monday that he doesn't waive his conflict of interest involving Dan Rashbaum, the defense attorney who represented him at trial & is representing his mother, Donna Adelson, in her trial.

— Jeffrey Burlew (@JeffBurlew) September 17, 2024

SDFLA USAO: Please Snitch

 The U.S. Attorney's Office for the Southern District of Florida has a new "Whistleblower Non-Prosecution Pilot Program":

The Whistleblower Program is designed to encourage voluntary self-disclosure by individual participants in certain types of non-violent criminal conduct involving corporations, to include financial crimes, corporate crimes, health care fraud, and public corruption. 

In exchange for self-disclosing, fully cooperating with authorities, and paying any applicable victim compensation, restitution, or forfeiture, including returning any ill-gotten gains, the U.S. Attorney’s Office for the Southern District of Florida (USAO-SDFL) will enter into a non-prosecution agreement (NPA) where certain specified conditions are met. One of those conditions is that the government was not previously aware of the criminal conduct that is the subject of the disclosure. The Whistleblower Program provides transparency regarding the circumstances in which the USAO-SDFL prosecutors will offer NPAs to incentivize individuals (and their counsel) to provide original and actionable information. Incentivizing the disclosure of information will: (i) help law enforcement investigate and prosecute criminal conduct that might otherwise go undetected or be difficult to prove; and (ii) encourage companies to create compliance programs that help prevent, detect, and remediate misconduct.

Congrats to Marty Fulgueira Elfenbein on her investiture

 Here are some pictures (courtesy of Judge Stuzin, pictured below with our newest magistrate judge). 

Meet the Newest District Judges

By John R. Byrne

Yesterday our three newest district court judges were interviewed by Judge Ruiz at the Four Seasons. The event was very well received. As you can see from the picture, the Four Seasons opted for a new presentation format, dumping the typical panel table setup for something more casual. The three judges each commented on the challenges of their first six months as a “DJ” (as Judge Ruiz short-cited it) and provided insight into the inner workings of their chambers and pet-peeves. The people who attended said Judge Ruiz led a fun and lively discussion about judging. To quote one prominent lawyer in attendance, “We are clearly in great hands with these three ‘new’ judges.” 

 Photo credit to Judge Robert Watson!

For the Defense: Former A.G. Alberto Gonzales

 

FOR THE DEFENSE, SEASON 6, EPISODE 8:
Former Attorney General Alberto Gonzales

We haven't had a prosecutor on the podcast before.  But there's been a lot in the news about prosecutorial independence.  Should a governor, for example, have the power to remove an elected state attorney?  What if the state attorney says he or she is not going to enforce a particular law?  Alberto Gonzales, the former United States Attorney General, joins the podcast to discuss these interesting issues and others. Gonzales is the current dean of Belmont Law School and is also a former judge, so he has an interesting perspective.  Gonzales is friendly, engaging, and pretty transparent about his time as AG.  I think you'll enjoy the episode.

As always, you can catch this and other episodes on the web or on every podcast platform, including Apple and Spotify. 

And in light of the presidential debate tonight, check out this clip of the former Attorney General discussing the rhetoric in politics and whether he is ready to make an endorsement in the election.  Here's one more of him discussing the role of White House counsel, using the Aschroft/Comey incident as an example.
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If you have a friend that would like to receive these updates, please have them sign up here.

Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur

Welcome back to the 3-0-5, KBJ!

Justice Ketanji Brown Jackson is on her book tour ("Lovely One"), and this weekend brought her back to her hometown Miami.  On Saturday morning, she spoke at the University of Miami and was interviewed by Stephen Rosenthal.  

And for the evening event, she packed the Arsht Center with about 2,400 people.  Judge Gayles interviewed her, and it was a really lovely event.  

She spoke about her childhood in Miami, how her parents raised her to believe in herself but also to be humble.  She spoke about her time at Palmetto Senior High and her debate coach Fran Berger.  And so much more.  She showed how dynamic and engaging she is... and why she is so likeable.  

Speaking of dynamic and engaging -- did you see Judge Roy Altman made Professor Ilya Shapiro's short list of Supreme Court nominees if Trump is elected?  I'd be all for another Miamian headed to SCOTUS.

The Meaning of Restrained

By John R. Byrne 

It happens enough in real life that we've all seen it playacted on T.V. or in the movies. Man (or woman) walks into a convenience store, pulls a gun on the cashier, demands money, gets money, and walks out. Question: in such a situation, has the cashier been "physically restrained"? Because if the answer is "yes," under the federal guidelines the man (or woman) in this hypothetical should receive a two-level enhancement under USSG § 2B3.1(b)(4)(B). 

Under current Eleventh Circuit precedent, the answer is "yes,” the idea being that the threat with a weapon is sufficient to freeze the person in place. That’s something that Judges Rosenbaum, Newsome, and Abudu think should be revisited by the Eleventh Circuit as a whole. That's what they discussed yesterday in US v. Delon, which we excerpt below. Judge Newsome even turned again to ChatGPT and other AI-powered language models for their thoughts on the phrase "physically restrained." Interesting take. 

Opening weekend for the Dolphins. Let’s go Fins!

Deleon by John Byrne on Scribd