False Claims Act Unconstitutional, says Middle District Judge. (Guess who).

If you guessed Judge Mizelle, bingo!

It's a fascinating read.

And she may very well be right.

Here's Reuters.

Over the last 20 years, the U.S. has routinely recovered upward of a billion dollars a year from False Claims Act lawsuits initiated by private whistleblowers who accuse defendants of defrauding the federal government. In 2023 alone, the U.S. took in more than $2.3 billion, opens new tab from hundreds of lawsuits initiated by private whistleblowers.

A federal judge in Tampa, Florida, ruled, opens new tab on Monday that these whistleblowers wield unconstitutional power. U.S. District Judge Kathryn Mizelle concluded that the whistleblower, or qui tam, provisions of the False Claims Act violate the Appointments Clause of Article II of the U.S. Constitution because whistleblowers exercise executive-branch power without accountability to the president.

Mizelle, a former clerk of U.S. Supreme Court Justice Clarence Thomas who was 33 years old when she was appointed by President Donald Trump in 2020, said False Claims Act whistleblowers are effectively acting as officers of the United States when they initiate and prosecute civil fraud lawsuits on behalf of the government.

And here's the (53 page) opinion.

FBA Installation

By John R. Byrne

The South Florida Chapter of the Federal Bar Association held its Installation on Saturday at The Four Seasons. Nice event. Judge Graham, forty years after being sworn in as president of the Chapter, swore in new president Courtney Cunningham.

Cathy Wade, former Executive Services Administrator for the Court, received the NED Award for her service to the federal bench and bar. Judges Bloom and Williams gave heartfelt (and funny) tributes to Wade, who began working for the Court in 1994.

No cooperating witness should ever be sentenced to more than 2 years again...

SDNY pretty much just set the ceiling on cooperating witnesses. Caroline Ellison was just sentenced to two years in prison and ordered to forfeit $11 billion.  That's billion with a B.  The crazy thing is that most of my NY friends that I spoke with are surprised she got any time as the culture there is for cooperating witnesses to get probation.  They were taken aback that she got two years.  

What's surprising to me is that Sam Bankman-Fried got 25 years.  Way too much time for a first time, non-violent offender where the actual loss was arguably zero.  I'm all for the NY system of cooperating witnesses getting no time (which is starting to catch on in other places).  But 25 years for going to trial needs to be fixed. 

He has a number of really good issues on appeal, including that the judge forced him to testify out of the presence of the jury before taking the stand so that the judge could determine whether his testimony would be admissible.  Pretty insane.

If you were the sentencing judge, what would your sentence be for SBF and Ellison?

Judge Cannon gets Trump assassination case

 Here's the indictment.

It charges 18 U.S.C. 351(c) (attempted assassination of a presidential candidate) and other offenses.

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.

***

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