"As Kim Kardashian is with her husband, I'm not going to keep you long."

That was Chief Judge Ed Carnes today at Robin Rosenbaum's investiture. It was a great event with lots of good speeches.  Judge Carnes also invoked the song "Don't Rock the Boat Baby" in describing the importance of collegiality on the 11th Circuit.



Judge Stanley Marcus (who has known Judge Rosenbaum since she was his law clerk) gave a very funny talk, telling numerous jokes, which had the audience laughing out loud.  He started out by saying that since this was the third investiture that he was speaking at for Judge Rosenbaum, he felt a little like Zsa Zsa Gabor's 8th husband: he knew what was expected of him, but he wasn't sure how to make it different.



In response, Judge Rosenbaum said: "If you've enjoyed the entertainment, they'll be playing again next week in Las Vegas."  Then she invoked Talking Heads, "Once in a Lifetime."



Very fun event.



Here are some pictures:

Here is Judge Marcus swearing in Judge Rosenbaum.

How would you like this jury:

And here are 11 of the 12 active judges on the 11th Circuit, plus two senior judges:

Big unpublished opinion from the 11th Circuit reversing because of a judge's refusal to ask voir dire questions related to sexual preference prejudices

Judge Martin issued this 2-1 opinion in United States v. Bates, holding that it was reversible error not to ask potential jurors about their biases against "men who have sex with men." Northern District of Florida Judge Robert Hinkle dissented while Judge Richard Eaton from the Court of International Trade joined Judge Martin.  Even though the emergency order allowing two visiting judges has been lifted, its revocation only applies going forward, so it does not affect this opinion.

From the intro:

Cameron Dean Bates is a federal prisoner serving a 240-month sentence after being convicted of eighteen counts of receiving, accessing, distributing, and possessing child pornography, in violation of 18 U.S.C. § 2252A. He is also a man who has had sexual relationships with other adult men, a fact that came to be a central issue during his criminal trial. He challenges his convictions on several grounds. But we need only consider his argument that he should have been permitted to inquire of potential jurors whether they might harbor prejudice against men who have sex with men. Specifically, Mr. Bates argues that the District Court abused its discretion when it refused his request to ask prospective jurors during voir dire about any prejudice they might harbor against him on the basis of his sexual activity with other men. After careful review, and with the benefit of oral argument, we agree with Mr. Bates that the District Court should have examined whether the jurors might bear prejudices against him. While it is true that Mr. Bates stands charged and convicted of disturbing acts of receiving and distributing child pornography, we cannot condone the manner in which his convictions were obtained. As a result, we vacate the convictions.

From the end of the opinion:

The government cannot carry its burden to show that this error was harmless. If Mr. Bates is to be convicted, we must have sufficient assurances that it is done by a fair and impartial jury of his peers. Here, the risk that Mr. Bates was convicted by jurors who cared less about the charged criminal conduct than about his perfectly legal sexual activity, is intolerably high. His convictions must therefore be vacated, and we remand this case for further proceedings.

 The court was also concerned with the amount of time the defense was given to prepare:

Although we do not decide Mr. Bates’s argument that the District Court abused its discretion by denying his motions to continue trial, on remand the District Court must assure itself that Mr. Bates has adequate resources to permit his expert to review the evidence, and enough time to pursue the evidence necessary to aid in his defense. Two circumstances of this case raise concern that Mr. Bates was not afforded the time or resources necessary to prepare an adequate defense during his first trial. First, there was a delay of several months in getting approval for funds for an expert. ...
Second, we are concerned that Mr. Bates did not have enough time to prepare his defense, given that the focus of his prosecution shifted abruptly before trial. Mr. Bates was originally charged on August 23, 2012 in a two count indictment that included only one specific date on which child pornography was allegedly distributed, and gave a range of dates spanning sixteen months over which child pornography was allegedly downloaded or accessed. On February 14, 2013, just two weeks before trial, the government superseded on the indictment, increasing the number of counts to eighteen and highlighting much more detailed information about the dates and times child pornography was downloaded, accessed, and distributed. One week after that, the government disclosed a lengthy supplementary expert report, which was also more detailed than anything Mr. Bates had gotten from the government to that point. Given these late shifts in the focus of Mr. Bates’s prosecution, and the technical nature of the evidence the government presented, we are concerned that he did not have enough time to adequately defend himself during his first trial. See United States v. Verderame, 51 F.3d 249, 250–52 (11th Cir. 1995). If Mr. Bates is retried on remand, we hope and expect that the District Court will be mindful of his need for expert assistance and adequate time to prepare for trial.

"Never dance with a Cuban."

That was Justice Sonia Sotomayor, speaking at an event at Yale with Justices Thomas and Alito (see post below for more on the event and Alito getting turned away from brunch).  The Washington Post covers Justice Sotomayor's dance preferences:

The justice, whose family hails from Puerto Rico, said that as an appeals court judge, she was often invited to Hispanic events where salsa was being played. But she was a “potted plant” who never learned the steps.
So around age 50, Sotomayor took lessons and made a discovery: “I cannot keep a beat to save my life. But I have a facility that some of my colleagues would find very strange: I can follow.”
Amid the laughter, Sotomayor said that what she needs is a partner who can lead.
“Among Hispanic men, the best dancers in terms of keeping a beat are Dominicans, the worst are Cubans,” Sotomayor continued. “Dominicans have big, big steps--”
A doubled-over and guffawing Thomas interrupted: “That’s profiling!”
“It is, but it proves itself right a lot,” Sotomayor continued. “Cubans have these very tight little steps. Never dance with a Cuban. And Puerto Ricans I can dance with, too.”
It was the perfect set-up for the conservative Alito, with whom liberal Sotomayor frequently disagrees.
“It’s a revelation to know that Sonia likes to follow,” Alito said. “I think we’re going to start dancing in the conference room.”

“Well, he should have made a reservation. We get very busy for brunch.” -- hostess after turning Justice Alito away for brunch

Above the Law has a cute story about Justice Alito being turned away for brunch yesterday and how he handled it graciously.  This shouldn't be a big deal obviously, but when you have judges yelling at store clerks to take down signs, it's nice to hear that some judges have manners.

Anyway, three Justices were in New Haven giving a talk.  Per the NY Times:

Justice Thomas, 66, has apparently mellowed the most. He acknowledged being a “cynical and negative” law student, blaming immaturity and the unsettled political climate of the early 1970s. “I cannot say we were thinking straight about a lot of things, even if we were not using illegal substances,” he said.

“I wish I came here at a time when I could have been more positive,” he added. “There is so much here that I walked right by.”

For years, Justice Thomas had refused to return to Yale. In his 2007 memoir, “My Grandfather’s Son,” he wrote that his law degree had been tainted by affirmative action. He had, he wrote, “learned the hard way that a law degree from Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it.”

He added that he had “peeled a 15-cent price sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale.”

***

Justice Sotomayor, 60, has written that she was admitted to the law school with the help of affirmative action and that she found her time here intimidating and inspiring. She has been a frequent visitor and honoree, often drawing huge crowds, particularly after the publication of her own memoir, “My Beloved World.”

On Saturday, she said she is a poor dancer but loves salsa and does well with a strong partner. “I have a facility that some of my colleagues would find very strange,” she said. “I can follow.”

Justice Alito looked shocked. “It’s a revelation to me that Sonia likes to follow,” he said. “I think we’re going to start dancing at conference.”

The justices were questioned by Kate Stith, a law professor at Yale. She asked Justice Alito what he had been reading.

“I have two books that are inspirational,” he responded. “I keep them on a table by my bed, and I try to read a little bit of them every night. It’s ‘My Grandfather’s Son’ and ‘My Beloved World.’ ”

***

The six other justices all attended Harvard Law School, though Justice Ruth Bader Ginsburg transferred to and graduated from Columbia Law School.

Chief Justice John G. Roberts Jr., who has two Harvard degrees, was once asked whether it is healthy for the Supreme Court to consist of only justices with degrees from elite institutions.

“First of all, I disagree with your premise,” he responded. “Not all of the justices went to elite institutions. Some went to Yale.”

Speaking of judges having manners, Chief Judge Michael Moore says that Judge Cooke does not need to recuse in the Miccosukee case.  Judge Moore really did a solid for his colleague.  From the DBR:

Cooke was critical of Bernardo Roman III, the tribe's attorney who filed the federal litigation against his predecessors. Cooke said at one point that Roman "probably never read the rule of ethics."
"The court finds that these statements, while indicative of Judge Cooke's understandable frustration with the parties and proceedings, in no way demonstrate a bias or partiality," Moore wrote.
Cooke dismissed with prejudice the tribe's lawsuit on jurisdictional grounds against its former Miami attorneys: Guy Lewis and Michael Tein of Lewis Tein and Dexter Lehtinen of Lehtinen Schultz Riedi Catalano de la Fuente.

 Here's the whole order.

11th Circuit "emergency" over

On October 17, the 11th Circuit, per Chief Judge Carnes, issued an order putting an end to the emergency order that allowed cases to be decided by panels with only one active 11th Circuit judge.  Now we are back to at least 2 11th Circuit judges per panel.

Aly Palmer of the Daily Report has this story:

With his court back to nearly full strength, the chief judge of the U.S. Court of Appeals for the Eleventh Circuit has announced the end of a court emergency.
In December, Chief Judge Edward Carnes declared an emergency, saying that cases could be decided by three-judge panels composed of only one of the court's judges plus two visiting judges. At the time, four of the court's 12 slots were vacant.
Since then, three vacancies have been filled. Most recently, Judge Jill Pryor of Atlanta started work two weeks ago. On Friday, Carnes signed a new order declaring the emergency over.
Friday's order suggested that the public will continue to see decisions from panels that include only one member of the court. Carnes explained that panels composed of fewer than two Eleventh Circuit judges that have had any appeals either orally argued or submitted to them for decision before Friday remain authorized to decide the cases.
Federal law says that when federal appeals courts decide cases by three-judge panels, at least two of the judges must be members of that particular appeals court. An exception includes the chief judge's ability to certify an "emergency."

Meantime, the big federal bar shindig tonight is at the JW Marriott.  Who is in?

Judge Gold formally retires

The blog reported back in August the sad news that Judge Gold was formally retiring this month and that he would close his chambers and take inactive status.  John Pacenti of the Daily Business Review covered the story last week and reports that Judge Gold is happy about moving on to the next phase of his life:

But for now, he is focused on his baby granddaughter in New York. His wife, Susan F. Gold, retired last year as an associate professor of pediatrics and education at the University of Miami, and they want to focus on family and travel.
"It's about at this phase in my life, reprioritizing while I'm healthy," he told the Daily Business Review. "We wanted to explore really other interests in our lives together and independently."
Gold was appointed by President Bill Clinton in 1997 after serving as a state circuit judge, an attorney with Greenberg Traurig and a Miami-Dade County attorney. He took senior status in 2011.
"This is a tough week because there is a sense of sweet sorrow in retrospect, but also an excitement about living a mindful phase of my life," the 70-year-old judge said. "At this stage, it's time to ask your next question: Who are you now, and what is it you want to do with the time you have left?"
***
U.S. District Judge Federico Moreno said Gold was one of the hardest-working judges in the district."He always has been one of our more scholarly judges," Moreno said. "We are going to miss him because he was such a hard worker, but I'm delighted he wants to spend more time with his family. He certainly deserves a break." 

Judge Gold was at Judge Bloom's investiture last week and looked great. 


He handled some of the biggest cases in this district -- Exxon, UBS, Shaygan...  But more importantly than the brilliant way he handled those cases was that he was a great person and made everyone feel like they were getting a fair shake.  He'll be missed on the bench.

Supreme Court oral argument should be televised

John Oliver is so good:

Akerman lawyer Ryan Roman opens Mignonette

It's a fantastic restaurant. If oysters are your thing, there's no better place.  And it's the best lobster roll in town.  I highly recommend it. 

Plus, for better or worse, you'll likely see a bunch of judges and lawyers.  After all, owner Ryan Roman is a lawyer himself at Akerman:

Ryan Roman is an associate in the Litigation Practice Group. His commercial litigation practice includes a focus on securities litigation matters, including SEC enforcement proceedings and securities class-action defense. He has also represented portfolio companies in private equity litigation matters. In addition, Ryan is also experienced servicing clients in the hospitality industry, having defended restaurant shareholders in various business disputes. He has defended various businesses in consumer class actions, and represented companies in the enforcement of money judgments.

But he has a passion for food, running the popular food blog, MiamiRankings.

Ryan opened the joint with Blue Collar's Danny Serfer.  From the Miami.com review:

"We're both into oysters and classic raw bar ... and of course prime rib," Roman says. "So we're excited to share all that at Mignonette. Oysters are an aphrodisiac, the more you eat them, the more you love to eat them. We just want to have a place to eat cold seafood that's fun, casual and has curse words on the radio."

PS: Evoking sort of an ethical husband/wife privilege, Roman says that Blue Collar will no longer be eligible for his restaurant rankings.

 The Miami New Times review is great:

The idea for Mignonette came to the pals a year and a half ago over a bowl of ramen at Momi Ramen in Brickell. Roman was at first hesitant. What swayed him to risk pouring his life savings into the business? "I'd rather live in a restaurant than a house," he explains.
So a little more than a month ago, they decided to open Mignonette with a fairly expansive menu of simple, classic preparations. To execute their vision, they plucked Mignonette's chef de cuisine, Bobby Frank, from Blue Collar, where he was Serfer's protégé. Then they decorated the place in an "Old Florida meets New Orleans" style that includes tan leather banquettes, a marble raw bar, and hanging constellations festooned from copper pipes. There's also an intimate back room with original wall art consisting of life-size fish rendered in gold leaf by artist Reed van Brunschot.

I like the story of the two owners on the Mignonette website:

Following the adage that the pen is mightier than the sword, Ryan Roman cuts all of his steaks with a pen.  A Miami native, Roman began writing about food and restaurants in 2009, with the launch of his blog, Miami’s Restaurant Power Rankings.  Roman also contributes as a columnist for Edible South Florida.  When he is not writing about food, he is a practicing attorney with the law firm Akerman LLP.

Roman first met chef Daniel Serfer after becoming a regular at Blue Collar, but perhaps the more compelling story is when the two didn’t meet.  Unbeknownst to Roman, Serfer would read Roman’s blog while laboring away in a kitchen in New York City, during a short absence from the Miami culinary scene.  Operating under the misimpression that the namesake “power rankings” on the blog were the result of some scientific algorithm, as opposed to one person’s arbitrary opinion, Serfer dreamed of opening his own restaurant back in Miami and achieving a spot on the rankings.  When Blue Collar opened, Serfer invited Roman to a media preview, having pushed his public relations company to free up one extra seat.  The stars were aligned for the two to meet and for their friendship to begin.

Roman declined the invitation.  Unaware of the backstory that Serfer had created in his head, and generally preferring to avoid what he perceived as freebie meals, Roman saw the invitation as just another piece of PR material for the circular filing cabinet.

But unlike Sharknado, this story has a happy ending.  Roman discovered Blue Collar in due time, falling for its emphasis on comfort food, its homey vibe, and its friendly staff.
After developing a friendship during which time Roman served as best man at Serfer’s wedding and godfather to Serfer’s firstborn child (who is affectionately referred to as Steak), and during which time Roman’s fear of commitment made it impossible for him to return such favors to Serfer, the two conspired to open Mignonette.