Sorry for the slow blogging

It's been a crazy week, but we've had some great guest posts.  Thanks for those!

We'll end the week with a post about judges starting to question these fake stings.  From the NY Times:

“Stash-house stings” like this one in 2013 have sent more than 1,000 of the country’s most “violent, hardened criminals” to prison, sometimes for terms of decades, according to the bureau, which has made a specialty of the ruses. The agency says it has conducted about 365 of these stings over the last decade, removing from the streets career criminals who are “willing to kill and be killed,” with less risk to agents and neighbors than raids on real stash houses.

But this year, the judge in this Los Angeles case dismissed the charges against two of the defendants on the rarely invoked grounds of “outrageous government conduct.” Judge Otis D. Wright II of Federal District Court described the bureau in his March decision as “trawling for crooks in seedy, poverty-ridden areas — all without an iota of suspicion that any particular person has committed similar conduct in the past.”

Similar prosecutions have nearly always held up in court, and the agency strongly defends its methods and choice of targets. But over the last year, a growing number of federal judges have questioned the tactic.

A second judge in Los Angeles dismissed similar charges in May. The federal appeals court in Chicago last week mandated a new trial to allow evidence of possible entrapment. Other judges have demanded data from the bureau to help them explore whether the stings, which nearly always land black or Hispanic defendants, involve illegal racial targeting.

The stash-house stings are a prime example of thespreading federal use of undercover agents in many fields, a trend that law enforcement officials say is efficient and safe but that raises unease among civil liberties advocates.

On Thursday, a federal appeals court in California heard the government’s motion to reinstate criminal charges in the case that Judge Wright criticized, and itscall that the judge be removed from the case for bias.

“The conspiracy was real; the guns were real; the defendants’ intent to use them to violently rob a cocaine stash house was real; and the defendants’ criminal histories were real,” the federal prosecutors argued in their brief. The supposed stock of cocaine had to be set high, they said, to make the proposal credible.

Continue reading the main story

In May, also in Los Angeles, Judge Manuel L. Real of Federal District Court dismissed charges against three other men, saying the government “steers too close to tyranny.” He said that the agents initially knew little about the defendants except that “they were from a poor neighborhood and minorities.” The government has appealed.

And last week, in another setback for federal agents, the United States Court of Appeals for the Seventh Circuitmandated a new trial for a defendant in a Chicago suburb who said he had been pressured into planning the robbery for which he was sentenced to nearly 27 years. The trial judge had erred, the circuit court ruled, by not allowing an entrapment defense.

In a separate line of attack on the drug stings, defendants in Chicago and elsewhere have filed motions to require the bureau to provide data on the racial makeup of sting targets, and information on how the agency selects its targets.

In one case, the agency asked the court to dismiss charges rather than be required to comply. In several others, after judges found at least suggestive evidence of racial targeting and approved the data request, the agency has complied, though the information remains under seal.

Judge Robin Rosenberg Invested as District Court Judge by ADAM RABIN

Adam Rabin, the author of this post, is a partner at McCabe Rabin.  Photo credit to Daniel Portnoy Photography.

On November 14, Southern District of Florida Chief Judge Michael Moore swore in Judge Robin Rosenberg as a District Court Judge before many federal and state court judges, bar leaders, family and friends.   The ceremony was moving and captured the personal side of Judge Rosenberg.

The investiture led off with Jonathan Paine, the son of the late U.S. District Judge James C. Paine, whom Judge Rosenberg clerked for after graduating from Duke Law School.  Jonathan spoke of how life comes full circle sometimes with Judge Rosenberg’s getting sworn in the same court room as Judge Paine had presided back when Rosenberg was clerking for him.

Past President of The Florida Bar, Scott Hawkins, presented the Bible and spoke of the nearly 75 hearings that he had before Judge Rosenberg in a hotly contested state court case over the last few years and how she never raised her voice once or lost her composure during the proceedings.

Fourth DCA Judge Robert Gross, with whom Judge Rosenberg occasionally sat as an associate judge, spoke of her work ethic and legal acumen.  Judge Gross also told a story on how his clerk performed an appellate review of a case that Judge Rosenberg handled as a trial court judge and had to enter a separate order on 70 different motions.  One by one, she did not just enter granted or denied.  Instead, she engaged in a separate, individualized legal analysis on each motion with findings and conclusions. The law clerk commented to Judge Gross that he had never seen anything like it.

Judge Rosenberg’s husband, former Palm Beach County State Attorney, Michael McAuliffe, also spoke on Judge Rosenberg’s accomplishments. In talking about the Senatorial judiciary confirmation process, McAuliffe analogized a common expression when mountaineering (a hobby for McAuliffe who re-climbed Kilimanjaro this summer) that “It’s always further than it looks.  It’s always taller than it looks.  And it’s always harder than it looks.”

The show was stolen, however, when Judge Rosenberg and McAuliffe’s elder daughter, Sydney Rosenberg McAuliffe, a freshman at Duke, took the podium.  She spoke of the accomplishments and role-modeling that her mother had provided for her and her younger brother and sister as a professional.  More significantly though, Sydney spoke of their close, best-friend relationship and that while her “mom accomplishes more than most by dawn,” it is her love for and unyielding investment in her children that was her most laudable accomplishment.  Most of the audience had to brush off the tears.

Judge Rosenberg closed with thanking her parents, children, family, friends, state-court judicial colleagues, the federal judges who have welcomed her, President Obama, and Senators Nelson and Rubio.

If you have never been to a federal-court (or state-court) judicial investiture, you should attend one.  They always remind me of how fortunate we are to practice law, re-instill the importance of professionalism and civility in our profession, and reinforce how family and friends contribute greatly to one’s success.

Congratulations to Judge Rosenberg on an investiture that had most attendees smiling through the weekend. 

A 'humble giant' by Bill Cooke

Bill Cooke, the author of this post, is a Miami photojournalist and publisher of the Random Pixels blog.

I first met Judge William Hoeveler sometime around 1990, right after he'd been assigned to preside over the trial of Panamanian dictator Manuel Noriega.

A writer for the Los Angeles Times wrote this after he was picked: 

"He stands 6-feet-3, his hair is silver-gray, he speaks in a rich baritone, and his bearing is nothing less than magisterial....

"If you went to Central Casting and said, 'Give me a judge,' " says top Miami defense attorney Roy Black, "you couldn't get someone better than William Hoeveler.

"But he not only looks like a perfect judge," adds Black. "He is."

Back then, I was a freelance photographer shooting news assignments for the Associated Press.

There were lots of stakeouts at the federal courthouse as the trial date neared. Stuff that usually involved taking pictures of attorneys entering and leaving the courthouse. Not very exciting. 

In 1991, one newspaper reported there were "more than 250 pretrial pleadings, motions, responses, memorandums and court orders" in the months leading up to the trial.

At some point, I decided to approach the major players involved in the case and ask them if I could shoot their portraits in a formal setting: Noriega's defense attorney, the prosecutors, and of course, Judge Hoeveler.

This was, after all, going to be what some would call the Trial of the Century.

Frank Noriega, Myles Malman, Guy Lewis and Pat Sullivan all agreed to give me some time.

And then I called Judge Hoeveler. I'd been introduced to him some weeks before by a mutual friend.

"Would you mind if I shot a portrait of you in your chambers, Judge? You know...for history?"

"Of course," was his response, "When would you like to do it?"

A date was set and I lugged my equipment up to the ninth floor. As I shot pictures in his chambers, I soon became fascinated with this man who treated me - a somewhat disheveled and unrefined news photographer - with genuine respect. The judge didn't judge or criticize. He even laughed at my corny jokes.

I soon learned that I wasn't alone. Judge Hoeveler, I found out, had a reputation for treating everyone the same way. With respect. 

Finally, in September 1991, as the trial was about to get underway, I found myself back at the courthouse. I was assigned to get a picture of the judge when he arrived for the first day's proceedings

I decided to stake out the entrance to the courthouse's underground garage - joined by a few TV cameramen - in the hope of getting a shot or two before he disappeared into the garage.

It wasn't long before the judge drove up to the guard shack.

But instead of driving in, he rolled down the window and chatted with us for a bit. He seemed genuinely bewildered, but nevertheless amused, by all the attention he was getting. As we chatted, the judge's equally bewildered Akita, Nisei, peered at us from the back seat of the car.

Here was a judge arriving for perhaps the most important trial of his career, but he still found the time to talk with some scruffy news photographers. Respect. 

Over the years, I found myself back in his chambers for various reasons. I always looked forward to those visits. And when I couldn't visit, I picked up the phone just to say hello and to chat for a few minutes. His secretary, Janice, never told me that he was too busy to talk.

Almost 25 years later, I still call Judge Hoeveler a friend.

I revere the man.

A few months ago, I read that he was finally going to retire.

I made a mental note to go downtown and see him, but I kept putting it off, afraid perhaps, that I might become too emotional.

A few weeks ago, the judge's daughter, Margaret, posted something on Facebook about a going away party that had been held  in his honor. 

I decided to call her.

"I'd like to visit with your dad. Do you think that's possible?"

"Sure," she said, "why don't you call him?"

Last week, I called him. But because it was 8 p.m., I was sure his wife, Christine, would answer.

Not a chance. A strong, clear, familiar voice answered.

"Hi," I said, "this is Bill Cooke."

"And this is Bill Hoeveler," came the answer.

"I'd like to come see you," I said.

"You're welcome to come anytime," he said.

On Saturday, Michael Putney and I dropped in on the judge and Christine. Shortly after we arrived, Margaret popped in. 

We shared some stories, laughed a lot, and someone - I'm not sure who - may have even shed a tear or two.

After our visit, I posted some pictures on Facebook. I noted that I wasn't proficient enough in the English language to adequately describe Judge Hoeveler. 

In my opinion, the word "great" isn't descriptive enough. 

A few hours after I posted on Facebook, the Miami Herald's federal courts reporter, Jay Weaver, left a comment on my post calling the judge "a humble giant."

Indeed, Jay. Indeed.

Big 5-4 en banc opinion from the 11th Circuit

The blog covered the panel decision in Spencer v. U.S. here in which the panel held:

We hold that a defendant who unsuccessfully raised a career offender issue at both sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court validates his argument and applies retroactively. Under that intervening case, this defendant’s third degree Florida felony child abuse conviction no longer qualifies as a predicate crime of violence. He therefore is not properly treated as a career offender. We vacate the district court’s denial of his section 2255 motion and remand for resentencing. 

Seems rather straightforward.  Someone who preserves an issue should be allowed to raise it when the law changes, especially where it means an extra 81 months in prison.

But the 11th Circuit in a 5-4 opinion, per Judge Pryor (joined by Ed Carnes, Hull, Tjoflat & Marcus), said no:

This appeal concerns whether a federal prisoner may relitigate an alleged misapplication of the advisory United States Sentencing Guidelines in a collateral attack on a final sentence. After he pleaded guilty to distributing cocaine and we affirmed the judgment against him, Kevin Spencer moved to vacate his sentence of imprisonment, 28 U.S.C. § 2255, for an alleged error in the application of the advisory guidelines. Spencer argues that an intervening decision of the Supreme Court, Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581 (2008), makes clear that the district court and this Court erroneously classified him as a “career offender” based on a prior conviction for felony child abuse, which he argues is not a “crime of violence.” United States Sentencing Guidelines Manual § 4B1.1 (Nov. 2006). Spencer maintains that this alleged error represents a “fundamental defect which inherently results in a complete miscarriage of justice,” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471 (1962), that can be revisited on collateral review. We disagree.

 There were a number of powerful dissents by Martin, Jordan, Wilson & Rosenbaum.

Here's Judge Wilson:

Kevin Spencer has served approximately eight years of the prison sentence he received after pleading guilty to selling two rocks of crack cocaine to an undercover police officer. Had the district court correctly applied the sentencing guidelines, Spencer would likely be a free man today. Instead, because of the district court’s erroneous application of the career offender enhancement, Spencer faces the prospect of spending nearly six more years in prison unnecessarily.
Contrary to the Majority, I do not read Supreme Court precedent to say that a “lawful” sentence forecloses a determination by us that a complete miscarriage of justice has taken place in Spencer’s case. Accordingly, I would reach the merits of Spencer’s claim because I believe that an erroneous guideline determination that is likely to result in a person spending such a considerable amount of additional time in prison—here, six years—constitutes a fundamental error resulting in a complete miscarriage of justice.

 Judge Martin:

I believe the federal courts as an institution would be stronger if we simply acknowledge that we got Mr. Spencer’s sentence wrong from the start, and fix it. The government now concedes that, contrary to its argument to Mr. Spencer’s sentencing court in 2007, he had no prior crime of violence conviction at the time he was sentenced. But the government nevertheless urges this Court to lay the burden of its mistaken 2007 argument upon Mr. Spencer. The majority of this Court has done just that. So Mr. Spencer will continue to serve an extra many years of a mistaken sentence, even though he has been right about how we got his sentence wrong from the start.

Judge Jordan:

Kevin Spencer is serving more than 12 years in prison (151 months to be exact) for selling $20 worth of crack cocaine. The panel found, see Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013), the government now concedes, see En Banc Brief for the United States at 57-58, and the majority does not dispute, that Mr. Spencer’s mistaken career offender designation more than doubled his advisory sentencing range from 70-87 months to 151-188 months. For those of us familiar with—and sometimes numbed by—the ranges produced by application of the Sentencing Guidelines, it may be easy to overlook the dramatic increase resulting from the error. To put it in perspective, the 81-month increase is roughly the time needed to complete both college and law school.

And Judge Rosenbaum starts off this way:

Today the Court holds that Sentencing Guidelines error that does not cause the imposition of a sentence greater than the statutory maximum can never be cognizable under § 2255 unless a prior conviction on which an enhancement is based is vacated or the petitioner is actually innocent of the crime for which he was sentenced. The reason for this, the Court explains, is that all sentences based on errors under the Sentencing Guidelines but still lower than the statutory maximum are necessarily “lawful,” and “lawful” sentences are not cognizable under § 2255. But the notion that “lawful” sentences cannot be challenged on a § 2255 petition is not supported by United States v. Addonizio, 442 U.S. 178, 99 S. Ct. 2235 (1979), the case on which the Court relies for the proposition, and is undermined by the statute’s own text.

Powerful dissents.  It just seems absolutely wrong to let a man sit in prison for 81 more months when everyone acknowledges that he wasn't a career offender.  Why is finality is worthy goal when justice, fairness, and the law dictate a different result.  If Spencer is sentenced today, he probably gets 2 years instead of 15. 

It is worth noting that the two newest court members, Julie Carnes and Jill Pryor, did not participate. Also, Senior Judge Phyllis Kravitch who was part of the panel elected not to participate.  And the visiting district judge on the panel was not permitted to participate.  So this case may well have turned out differently if the new judges were on the en banc court.  This case looks destined for the Supremes.

Robin Rosenberg's investiture today

Congrats to Judge Robin Rosenberg, who will have her formal investiture today at 3pm in West Palm Beach.  Exciting stuff!

“What the prosecutor said isn’t true.”

That was Marty Raskin doing his best My Cousin Vinny in opening statements for the ICE agent on trial before Judge Altonaga.  The Herald has the details:

Juan F. Martinez was a “corrupt” federal agent who pocketed hundreds of thousands of dollars from informants while extorting a Colombian business and drug traffickers with the power of his badge, a prosecutor told Miami jurors Wednesday.
Martinez, a suspended Immigration and Customs Enforcement agent, knew nothing about the suspicious payoffs that swirled around him and that his informants were the real criminals, a defense attorney countered during opening statements of his client’s federal extortion trial.
“What the prosecutor said isn’t true,” attorney Martin Raskin told the 12 jurors.
Martinez, 48, faces up to 20 years in prison if he is convicted of an extortion conspiracy charge or related offenses in a 12-count indictment filed last December. His trial is expected to last three weeks before U.S. District Judge Cecilia Altonaga.
Martinez, who joined ICE in 2001 before being suspended without pay a decade later, has investigated Colombian cartels, paramilitary groups and other drug traffickers.
The charges allege that Martinez used his official ICE position to extort more than $2 million from a Colombian company, some of its employees and drug traffickers in exchange for purported law-enforcement protection and immigration benefits between 2009 and 2011, according to prosecutors Michael Nadler and Karen Gilbert.
Martinez, a one-time Miami police officer, became the target of a federal criminal investigation after undercover agents spotted him during a March, 29, 2011 meeting with a Colombian drug-trafficking informant at the touristy Bayside Marketplace in downtown Miami.
The informant gave Martinez a bag stuffed with more than $100,000 in alleged cash bribes — courtesy of the Colombian company that they were shaking down, prosecutors said.
Unbeknownst to Martinez, Drug Enforcement Administration agents stumbled onto Martinez that March day because they had been investigating his informant, Jose Miguel Aguirre-Pinzon, whom they saw make the alleged cash delivery at Bayside, according to sources familiar with the probe.
Martinez was later stopped by DEA agents on his way back to ICE’s field office in west Miami-Dade. DEA agents found the alleged payoff stashed inside Martinez’s car.
“That is the day that the house of cards built by the defendant with lies and deceit began to crumble,” Nadler told jurors during opening statements.
But Raskin, the defense attorney, said the payoff was not what it appeared to be. “The money was given to Agent Martinez to hold over night because Miguel [the informant] was afraid to hold the money in his hotel room over night,” he said.

Should the Supreme Court and its Justices be more open?

Well, they couldn't be more secretive according to a new push to open up the Court.  From USA Today:

As in: They don't publicize their schedules. They don't state their conflicts when recusing themselves from cases. They don't put their financial disclosures online. They don't bind themselves to a code of conduct. And they don't let cameras in the courtroom.
"The Supreme Court has taken on a larger role in American life in recent years. With that increased power comes the need for increased accountability," says Gabe Roth, former manager of the Coalition for Court Transparency, which has focused largely on the need for greater video and audio coverage of the court.
The new effort, to be called "Fix the Court," is intended to bring more media and advertising firepower to what has been a diffused effort on the part of liberal, conservative and government watchdog groups concerned about the high court's renowned seclusion.
It opens Wednesday with a six-figure advertising campaign aimed at politically active fans of Fox and MSNBC, as well as online sites. Funding comes from the non-partisan New Venture Fund.
"They told us where we can pray, picked our president, allowed billionaires to buy elections and made choices of life and death," the ad intones. "Nine judges, appointed for life to a court that makes its own rules and has disdain for openness and transparency — the Supreme Court, the most powerful and least accountable branch of government."
The campaign will open with five goals:
•It wants the justices to specify why they recuse themselves from cases, so the public can gauge their potential conflicts of interest.
•It wants annual financial disclosures filed online, with more details about the justices' benefactors.
•It wants them to abide by the same code of conduct that applies to other federal judges.
•It wants advance notice of their public appearances.
•It wants improved media and public access to their courtroom and plaza.
The justices' elusiveness has baffled reporters for years, inspiring outside efforts to track their travels in advance. The latest is a Twitter-based service called "SCOTUS Map" that collates future appearances on a map of the world.
"They're public figures. What they say makes news," Roth says. "They shouldn't be hiding their public appearances."

Meantime, the Court will be deciding whether to hear a case concerning the right to have fish-nibbling pedicures:

A Gilbert spa owner wants the U.S. Supreme Court to rule she has a constitutional right to have fish nibble on her customers’ toes and charge them for that.
Attorney Clint Bolick of the Goldwater Institute said that’s the only path now open to Cindy Vong, owner of La Vie salon, after the Arizona Supreme Court refused last week to consider her plea. That left in place a state Court of Appeal ruling which said the state Board of Cosmetology was legally entitled to stop her from using the fish.
Bolick said the issue is larger than just Vong.
He said it’s one thing for government to impose restrictions designed to protect public health and safety. But Bolick said the lower court ruling, if left undisturbed, allows state officials to ban an entire business practice.
“The issue is really a business’s right to exist,” he said.

My fellow germaphobes, would you put your feet in that water?

He cited a study done by the health protection agency in the United Kingdom.
“There has not been a single documented instance of harm from fish spas in the entire world,” Bolick said. “And that has been confirmed by the U.S. Centers for Disease Control.”
He also said that UK study found the risk to be “miniscule” and can be further reduced by following certain health and safety protocols.
Aune dismissed the UK study, saying that health oversight in Europe is not the same as it is here, with no real place for consumers who had developed infections to complain.
She said Arizona and other states had a problem about a decade ago when contaminated water used for foot baths resulted in ulcers on the legs of customers.
“It was the buildup in the pipes that weren’t getting cleaned out each night and each week,” Aune said.
She said that, questions of whether the fish themselves can transmit disease, the same problems can develop from having the fish in the water. And Aune said there’s really no way to disinfect the water.
“Not without killing the fish,” she said.
“They dirty the water,” Aune continued. “The water could never stay clear.”

Veterans Day

Rumpole has his yearly post up about Veterans Day.  It's a good read.

The courts are closed today, but what about your office?  Seems like most people are working. True?

Is your office closed today, on Veterans day?

Yes, my office is closed when the courts are closed. Yes, my office is closed when the schools are closed. No, my office is open except for holidays like Thanksgiving. No, my office is open when the stock market is open. No, my office is open every day.  

pollcode.com free polls

FDC-Miami holds first Daddy-Daughter Dance

This is both incredible and awfully sad at the same time (via the Miami Herald):

The bureau hosted its inaugural Daddy-Daughter dance to create an enduring memory, one that can carry inmates to the outside world with a different perspective and offer daughters the hope that there will be more such moments. It is part of the bureau’s broader reentry program to reach out to the children and families of offenders and strengthen their bonds, critical for transitioning back home. “You are a key to the success of your father,” Federal Bureau of Prisons Director Charles E. Samuels Jr., told the 20 girls, aged 4 to 18, who had assembled to meet their fathers, all minimum-security, nonviolent offenders.
In a third-floor prison meeting space transformed into a ballroom with a fairytale theme, 13 fathers in suits and ties and tuxedos spent two hours with their girls, this long-held tradition unfolding without the harshness of uniforms and visiting rooms and prison walls. They danced. They swayed. They held tight. They laughed. They cried. And these fathers who have been gone for years remembered the chapters they had missed: birthdays, holidays, first tooth, first crush, first heartbreak.
Some of the girls are so young, they only know a father confined; others are old enough to remember what life was like when their father was home.
“I haven’t been there for so many special moments,” said inmate Michael Rangel, 40, his eyes welling up. The father of three daughters has been in prison almost three years for cargo theft and is scheduled to enter a halfway house in January. “I talk to them and email them all the time, but it’s not the same as being there.”

The whole article is worth a read, and there are some great pictures by Al Diaz at the Herald link.

6th Circuit upholds gay marriage ban, creates circuit split

It's an interesting debate about the role of judges.  Is it the judiciary's duty to defer to the will of the people or to provide a check against the majority while upholding our constitutional rights.  I think the dissent has the better of this one (here are both opinions):

Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. The framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Meantime, Sandy Yates, the wife of Supreme Court litigant John Yates, posted in our comment section for yesterday's post:

Just to clarify a couple of points. The fish measured off shore had been frozen for 4 days. When remeasured on shore were put up a metal conveyor and dumped into a vat of water in August in Florida. Hmmm, do you think they may have thawed out. The average fish on shore were 1/2 on bigger than off shore. In addition the FWC officer testified he does NOT measure fish in accordance with federal law. Now, add the fact that the FWC expert witness provided a document with an analysis of measuring the fish the correct way those fish (even frozen) were mostly over 20 inches. Not for the clincher. While NOAA was running around getting this "paper shredding indictment", the head Law Enforcement officer for the whole US was in front of Congress for shredding 80% of his files while being investigated by the Inspector General's Office for abuse of fisherman. Ironic, don't you think.

Go get 'em Mrs. Yates!

"No, I'm not talking about Congress. I'm talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?"

That was Justice Scalia today in the "fish case", Yates v. U.S., going after the government lawyer for his argument on the statute.   SCOTUSBlog has a summary of the oral argument, which looks like it was a rough ride for the SG's office:

Within minutes, Scalia leaned forward and, accusingly, told Martinez that he was defending the law and its use for someone who got only thirty days.  “What kind of sensible prosecutor does that?  Who do you have who exercises prosecutorial discretion?  Is it the same guy who brought Bond, last Term?” — a reference to a decision in which the Court had ruled that the Justice Department had gone too far in using a law against the spread of chemical weapons to prosecute a woman for trying to poison her husband’s lover.
Scalia pressed on, noting the potential for a twenty-year prison sentence under this law, and asking “what kind of mad prosecutor” would use that law in a case like this one?  Martinez weakly responded that the prosecutors had not asked for a twenty-year sentence against the fisherman.
Justice Ruth Bader Ginsburg then interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors.  Martinez answered that the manual for U.S. attorneys told them that, in choosing what crimes to charge, to go for the “most severe available.”
In view of that, Scalia retorted, the Court was going to have to be “much more careful” about how it interpreted federal criminal laws.  When Martinez tried to portray the fisherman as someone who ordered the destruction of evidence, disobeyed a federal officer, and worked out a cover-up scheme, Chief Justice John G. Roberts, Jr., commented: “You make him sound like a mob boss.”
Just what sentence did prosecutors recommend here, Justice Kennedy asked.  Martinez said twenty-one to twenty-seven months, but then added that thirty days here was “reasonable” and twenty years “would have been too much.”
The hearing’s tone had changed totally, and Martinez was on the defensive throughout the remainder of his time.  He tried to recover by going over the specific words and headings in the law, trying to show what Congress had intended for the law.
As he was nearing the end of his half-hour, Martinez was suddenly confronted by Justice Samuel A. Alito, Jr.   The lawyer, the Justice said, had a lot of arguments on the fine points about the law, but “you are asking us for something that is pretty hard to swallow,” that this law could be used for “really trivial matters.”
When Martinez protested that the law would not be used for “trivial matters,” Alito conjured up just such small offenses as throwing a single trout, illicitly caught, back into a lake, and then Justice Breyer asked about kicking a small ember away to try to conceal a forbidden campfire in a public park.  “You could multiple the examples beyond belief,” Breyer said.
In between those exchanges, Justice Kennedy commented acidly that the Court perhaps should no longer refer to the concept of “prosecutorial discretion” if it was open to use as in this case.
Martinez’s woe had started with Justice Scalia, and it never ended until he sat down.

Judge Hoeveler's retirement reception

Here he is with some of his colleagues from last week's reception honoring him.

Ft. Lauderdale jury finds UBS executive not guilty in tax case

Matthew Menchel represented Raoul Weil in this lengthy trial before Judge Cohn.  Here's the AP's Curt Anderson:

A federal jury acquitted a former top Swiss banking executive of U.S. charges that he conspired with wealthy Americans to hide $20 billion in secret accounts from the Internal Revenue Service.
Jurors deliberated just over an hour before returning the not guilty verdict for Raoul Weil, formerly the No. 3 executive at UBS AG. He had faced up to five years in prison and a $250,000 fine if convicted of conspiring to defraud the U.S. government.
"We're obviously pleased with the verdict. This was a case that should never have been brought," said Weil's attorney, Matthew Menchel.
...
In the courtroom, Weil hugged his wife and lawyers, clenching both fists when the verdict was announced.
Weil was the highest-ranking Swiss banker prosecuted under an IRS and Justice Department crackdown on Americans' use of offshore accounts to dodge U.S. taxes. In 2009, UBS paid a $780 million U.S. fine and disclosed names of thousands of American account holders to the IRS, many of whom were later prosecuted.

"An estimated 20,000 persons, or more, ... are in prison for crimes to which they pleaded guilty but did not in fact commit."

And those are conservative numbers according to Judge Jed Rakoff, who has written a compelling piece explaining that innocent people are pleading guilty to crimes that they have not committed.  There is a lot to blame for this phenomenon but he offers this solution:

What can we do about it? If there were the political will to do so, we could eliminate mandatory minimums, eliminate sentencing guidelines, and dramatically reduce the severity of our sentencing regimes in general. But even during the second Obama administration, the very modest steps taken by Attorney General Eric Holder to moderate sentences have been met by stiff opposition, some from within his own department. For example, the attorney general’s public support for a bipartisan bill that would reduce mandatory minimums for certain narcotics offenses prompted the National Association of Assistant US Attorneys to send an “open letter” of opposition, while a similar letter denouncing the bill was signed by two former attorney generals, three former chiefs of the Drug Enforcement Administration, and eighteen former US attorneys.

Reflecting, perhaps, the religious origins of our country, Americans are notoriously prone to making moral judgments. Often this serves salutary purposes; but a by-product of this moralizing tendency is a punitiveness that I think is not likely to change in the near future. Indeed, on those occasions when Americans read that someone accused of a very serious crime has been permitted to plea bargain to a considerably reduced offense, their typical reaction is one of suspicion or outrage, and sometimes not without reason. Rarely, however, do they contemplate the possibility that the defendant may be totally innocent of any charge but is being coerced into pleading to a lesser offense because the consequences of going to trial and losing are too severe to take the risk.
I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. For similar reasons, many federal judges (including this one) refuse to involve themselves in settlement negotiations in civil cases, even though, unlike the criminal plea bargain situation, there is no legal impediment to doing so. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation.
As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination.
The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.
Would a plan structured along these lines wholly eliminate false guilty pleas? Probably not, but it likely would reduce their number. Would it present new, unforeseeable problems of its own? Undoubtedly, which is why I would recommend that it first be tried as a pilot program. Even given the current federal rules prohibiting judges from involving themselves in the plea-bargaining process, I think something like this could be undertaken, since most such rules can be waived and the relevant parties could here agree to waive them for the limited purposes of a pilot program.
I am under no illusions that this suggested involvement of judges in the plea-bargaining process is a panacea. But would not any program that helps to reduce the shame of sending innocent people to prison be worth trying?

Stop using Courier (and Times New Roman)

Font choices are in the news because the Massachusetts Supreme Court is still using Courier, as are a number of judges in this District.  You must stop!  From the Boston Globe:

The court’s opinions all come down in Courier, the old-fashioned typeface designed to mimic electric typewriters. Courts are known for being tradition-bound, but today the SJC is one of only five state high courts that still issue opinions in Courier. And Massachusetts is one of only three states—along with Alabama and New Jersey—that essentially force appeals court attorneys to file their briefs in the font.

As a result, Massachusetts court proceedings have an almost uniquely retro look. The US Supreme Court publishes its opinions in neat, literary Century type. The State Department defected from Courier a decade ago in favor of Times New Roman. Even middle-school students can print their papers in high-toned Bodoni or Garamond.

“If the court asked, ‘So, would you like to stop using Courier?’ there probably would be a tsunami of, ‘Yes, please!’” said Susan Sloane, the director of Legal Research and Writing at Northeastern University School of Law.

Why does Massachusetts cling to Courier? The habit began with typewriters, of course, but its persistence in 2014 offers an illustrative window into the workings of the court, where deference to judges—and to precedent—governs things that have nothing to do with the law itself.

In the type world, Courier is what’s called a “monospaced” font, in which letters are squeezed or stretched to have equal width and spacing; for example, Courier adds a wide tail to lowercase “i” and squishes “w,” so they take up the same amount of room on the page. Most fonts used for texts today—including the one you’re reading—are “proportional,” meaning the spacing of each letter varies according to its size. These are easier to read, but didn’t work for typewriters, which were mechanically unable to vary spacing or the width of the metal type.

For decades, most appellate court briefs and opinions were produced on Courier typewriters, so they all looked the same. They also all had roughly the same number of words per page, because of the font’s uniform monospacing. So judges could conveniently and fairly set a page-count limit on their length.

With the advent of computers, lawyers began dabbling in different fonts that looked better—but also let them squeeze way more text onto the page. A 50-page brief might have the equivalent of 70 pages of Courier text in it. Many overwhelmed courts responded by passing rules requiring the use of Courier or a similar monospaced font.

In 1999, the Massachusetts SJC imposed a restriction in its Rules of Appellate Procedure, which govern the form of legal briefs. “Only a monospaced font is allowed,” that rule says, and Courier is the only one suggested. If there were any doubt as to why, SJC clerk Francis Kenneally points out, you can actually find a note in the rules explaining that it’s to prevent lawyers from sneaking extra text into the 50-page brief limit. (The rule doesn’t apply to the more egalitarian trial courts, which accept even handwritten suits, according to Michael Donovan, clerk of the Suffolk County Superior Court for Civil Business.)

The past 20 years have seen writing and typography advocates successfully pressing courts to modernize—not only in fonts, but in other typewriter holdovers such as double-spacing and in-line citations. A top advocate for better-looking court documents is Matthew Butterick, a Los Angeles attorney who’s also a Harvard-trained typeface designer. His blog “Typography for Lawyers” and 2010 book of the same name have been influential on many courts. He considers himself something of a Courier assassin.

“Have you ever seen a book, newspaper, or magazine printed in Courier? Never,” Butterick said in an e-mail. And for good reason, he said: It’s hard to read, and the written equivalent of “droning along in a monotone.”

 Butterick says stop using Times New Roman as well:

Why not? Fame has a dark side. When Times New Roman appears in a book, document, or advertisement, it connotes apathy. It says, “I submitted to the font of least resistance.” Times New Roman is not a font choice so much as the absence of a font choice, like the blackness of deep space is not a color. To look at Times New Roman is to gaze into the void.
If you have a choice about using Times New Roman, please stop. Use something else. See font recommendations for other options.

Okay, Okay, so you don't want to read about font choices on Monday morning.  Well here's a story from USA Today on a big fight in the Supreme Court about overcriminalization:

 Look up the definition of "fisherman" and John Yates' wrinkled, weather-beaten, Winston-puffing mug might appear. But these days, he's limited to restoring antique furniture and dealing in scrap metal.
Now look up the Sarbanes-Oxley Act of 2002, and you'll find the federal government's Enron-inspired crackdown on financial fraud and document shredding.
But three years ago, the act reeled in Yates for tossing 72 undersized red grouper into the Gulf of Mexico.
On Wednesday, the Supreme Court will examine the curious case of Yates v. United States, which asks the question: Was it the government that went overboard?
"It's obvious that a fish is not a document," says Yates, 62, over a lunch of grouper bites and Budweisers on the Gulf coast, which has been his home for the past 15 years. "You don't have to be that smart to figure that out."
Does the nation's highest court have bigger things to fret about than six-dozen 19-inch fish? Certainly.
But the justices agreed to hear Yates' appeal, even after two lower federal courts determined that his prosecution under a law targeting white-collar criminals was justified. It mirrors a similar case last year, in which the government prosecuted a jilted wife's clumsy effort at revenge under a federal chemical weapons treaty. The court reversed that one, 9-0.
The facts of the case: Yates was captaining the 47-foot "Miss Katie" in 2007 when a state conservation officer with federal enforcement power boarded, measured some 3,000 pounds of fish and found 72 grouper under the 20-inch minimum. He ordered them returned to shore.
Not throwing back in the undersized fish is a civil violation, punishable by a fine or fishing license suspension. But this fish tale got more complicated when Yates allegedly ordered a crew member to throw the offending fish overboard and replace them with longer ones. When the fish were remeasured on dry land, the government smelled a rat. So to speak.
It's a charge Yates still denies to this day; He says they were the same fish, measuring differently based on their mouths, tails and temperature. His wife, Sandy, a former paralegal, keeps a voluminous file that includes the original handwritten measurements of each fish.
Yates was convicted in 2011 of violating Sarbanes-Oxley, which carries a possible 20-year sentence for tampering with or destroying "any record, document or tangible object." He served a 30-day sentence over the Christmas holidays and still lives under a three-year supervised release program. When Sandy's sister died earlier this year, he quips, "It took an act of Congress for me to bury her in Ohio."

Bill Shepherd of Holland & Knight has written an amicus brief for NACDL supporting Yates.

"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.

Beth Bloom's formal investiture today (UPDATED WITH PHOTOS)

Congratulations!

Anthony Bosch pleads guilty

Here's the AP:

The former owner of a South Florida anti-aging clinic pleaded guilty Thursday to charges of illegally providing performance-enhancing drugs to athletes including high-profile Major League Baseball players, most notably New York Yankees star Alex Rodriguez.
Anthony Bosch, former owner of the Biogenesis of America clinic in Coral Gables, pleaded guilty to conspiracy to distribute testosterone before U.S. District Judge Darrin P. Gayles. Bosch, who called himself "Dr. T," faces a maximum 10-year prison sentence but is likely to get far less because of cooperation with prosecutors and with MLB's investigation into player drug use.
Defense attorney Guy Lewis said Bosch, 51, provided key information to MLB investigators that led to suspensions of 14 players, including the record season-long suspension handed to Rodriguez for this past year. Bosch also met numerous times with federal prosecutors and U.S. Drug Enforcement Administration agents, Lewis said.
"He was faithful in terms of appearing each and every time he was requested to," Lewis said. "Each and every time he appeared, answered questions and was available."
...In a plea agreement, Bosch admitted to providing testosterone to baseball players, from professionals to high school athletes. Six other people are charged in the case, and Bosch has agreed to testify against them if they go to trial.

He was also reinstated on bond:

Earlier this month, Gayles revoked Bosch's $100,000 bail because he twice tested positive after his August arrest for cocaine use and had missed appointments at drug treatment programs. On Thursday, Gayles agreed to release Bosch on bail with several new conditions, including a requirement that Bosch attended a 24-hour inpatient drug treatment program.Prosecutors did not object, and Lewis said Bosch needs the treatment badly.
"You have before you an individual who does need counseling. We recognize that. He's begging for it," Lewis said.
When Bosch is not in the treatment program, he will remain on house arrest with electronic monitoring, Gayles said. Sentencing for Bosch is set for Dec. 18.

Deputy U.S. Marshal from Miami arrested on drug ripoff charge in California

From News10 ABC in Yuba City, California:

One of three men arrested following a suspected marijuana theft is a deputy US Marshal.
Clorenzo Mack Griffin, 37, works out of the US Marshal's Service office in Miami and has been a deputy marshal since April 2010, said Drew Wade, a spokesman for the US Marshal's Service in Washington.
According to the California Highway Patrol, Griffin and two other men were in a Jeep that ran a red light around the corner from the CHP's Yuba City office on Saturday afternoon.
Following a short chase, the three occupants abandoned the vehicle near the Sutter County Jail and fled on foot.
A Sutter County sheriff's deputy saw one of the men, identified as Griffin, run into a secure area of the jail property and draw a handgun from his waistband.
The CHP says the deputy fired at Griffin, who wasn't hit, and was taken into custody along with the other two suspects without further incident.
Investigators found a large amount of marijuana in the Jeep and said their subsequent investigation determined the pot had been stolen at gunpoint from an individual in Yuba City.

 

Federal Bar invites pro bono participation

The Federal Bar Association had a nice luncheon at the Hyatt today asking lawyers to become more involved in pro bono cases at both the state and federal level.  Judge Salter from the 3rd DCA and Judge Jordan from the 11th Circuit spoke.  Good peeps.  Here's a picture from the event: