Big ups to Richard Klugh

Petitions for Panel Rehearing are never granted in the 11th Circuit.  I mean, unless you are the government.  Then, every now and then, they are.  But for the defense, winning a petition for panel rehearing is really really rare; almost impossible. You literally have a better chance of being struck by lightning (1 in 12,000 if you live to 80) than getting your panel rehearing petition granted if you are a defendant. 

But Richard Klugh just put lightning in a bottle in the B-Girls case. Winning a new trial on all the counts but one was a feat in itself (the post on the original entertaining opinion is here).  But then Richard moved for rehearing on the final count.  And won!

Here's the panel:

In Count 21, the government indicted Pavlenko for an email he sent to AMEX on
April 21, 2010.  [DE 953 at 15].  To sustain a wire-fraud conviction, that email must have furthered a fraud scheme, i.e., tricked AMEX into parting with money it would not otherwise have let go.  See Op. at 7–14.  Here, the scheme allegedly worked like this: a B-girl lured a man into Pavlenko’s bar, where the man proceeded to use his AMEX card.  Looking back on the encounter from the clearer light of day, the customer decided he had been defrauded and contested the charge with AMEX.  On April 19, 2010, however, AMEX determined that the charge was not fraudulent and sent its customer a letter saying so.  See [DE Doc. 1142 at 67, 85, 88 (citing Defense Exh. SP 50)].  On April 21, for whatever reason, Pavlenko sent AMEX an email covering up his relation with the B-girl.  But by then, he had nothing left to gain:  AMEX had already upheld the charge.  In doing so, AMEX did not—and, of course, could not—rely on the April 21 email.  [Id. at 88].  And since AMEX had already approved the charge, no reasonable juror could have concluded that Pavlenko defrauded AMEX of that money through the April 21 email, which was the sole basis for Count 21.

    

Federal courts are OPEN (UPDATED)

But state courts and schools are closed.  I don't get it...

UPDATE -- the Supreme Court is sort of open today:

When the U.S. Supreme Court opens its fall term on October 3, the public won't see a typical First Monday in October. The court won’t hear any arguments on its opening day, instead convening briefly for announcements and the swearing in of new bar members. The cancellation of arguments is meant to recognize the Jewish holiday Rosh Hashanah while also adhering to the 1916 law that requires the court to begin its term on the first Monday in October. That's not all: the court won't sit at all on October 12, when Yom Kippur starts. And it won’t take the bench on October 10 either. That is the federal Columbus Day holiday....It appears to have taken a 'critical mass' of two Jewish justices on the court to push the court to accommodate the need of observant Jews not to be working on major holidays. That occurred in 1994, when Stephen Breyer joined the court—a year after Ruth Bader Ginsburg.

Some news if you are in the office:

1.  Notorious RGB penned this op-ed in the Times.  From the conclusion:

Earlier, I spoke of great changes I have seen in women’s occupations. Yet one must acknowledge the still bleak part of the picture. Most people in poverty in the United States and the world over are women and children, women’s earnings here and abroad trail the earnings of men with comparable education and experience, our workplaces do not adequately accommodate the demands of childbearing and child rearing, and we have yet to devise effective ways to ward off sexual harassment at work and domestic violence in our homes. I am optimistic, however, that movement toward enlistment of the talent of all who compose “We, the people,” will continue.

2.  Paula McMahon covers the insanity of how much we pay informants in the criminal justice system:

Snitching for the feds can be dangerous work, but it also can be pretty lucrative.
One South Florida man who has been working undercover as a confidential informant for 31 years has been paid about $1.5 million for his efforts, according to court records and testimony that shed some light on the usually shadowy world of informants.
The payments, which appear to have started during President Ronald Reagan's second term in office, average out to more than $48,000 per year.
The Drug Enforcement Administration won't say who he is or why he does what he does, but some information about him slipped out in court this week after the DEA used him in a heroin sting.

3.  P.S. We pay the informants more than death penalty lawyers (that David Markus mentioned in the article is NOT me... sigh.).

And now, your moment of zen:

#winning

Gene Stearns is at it again, this time winning the Bank Atlantic case on appeal in the 11th Circuit. The court ordered a new trial after a 6-week trial. It's a significant win (but an unpublished opinion) and one that Gene predicted from the beginning.  The conclusion:

Accordingly, we reverse the district court’s grant of summary judgment with respect to the falsity finding of Levan’s Earnings Call statements and the affirmative defense of reliance-on-professional-advice. We affirm the district court’s rejection of judgment as a matter of law with respect to the accounting fraud and its pre-trial evidentiary rulings regarding the testimony of the SEC’s expert, Lynn Turner, and PwC’s 2012 look back report. Because the reversal of partial summary judgment creates genuine issues of material fact that require resolution, we decline to enter judgment in favor of Defendants.

Another Johnson case leads to 3 opinions

This time it's United States v. Vail-Baron. Judge Rosenbaum writes the majority. Judge Jordan concurred. And visiting judge Eugene Siler (from the 6th) dissents. Judge Rosenbaum starts off her opinion this way:

When I was growing up, my parents told me not to judge a book by its cover. The Supreme Court has expressed an analogous concern about concluding that a crime qualifies as a violent crime under the Armed Career Criminal Act (“ACCA”), based solely on the name of the crime. See Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s offense of “rioting at a correctional institution,” a crime that the Supreme Court characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony battery—a crime that, from its name, may sound like a crime of violence—actually satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing Guidelines when it is committed by mere touching. Heeding the Supreme Court’s warning, we have carefully compared the elements of felony battery under Florida law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not qualify as a “crime of violence” under § 2L1.2 when it is committed by mere touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.

"A very against police judge."

That was The Donald last night during the debate when discussing stop & frisk:



We didn't get any questions on the Supreme Court though...

Instead we got quite a bit of sniffles. I would have felt bad for him had he not been attacking Hillary's health for the past 3 weeks:



OK, OK... enough of that. The highlight of the night was Dee Gordon. I could watch this over and over again:

Will tonight's debate feature UFOs?

What was that percentage?!?!

I like this moment when Bill defends Hillary.




Should be fun tonight.

Justice Federico Moreno?

Former Chief Judge of the SDFLA, Federico Moreno, has made Donald Trump's short-list for Supreme Court Justices.  I love it.  Judge Moreno, who has been a district judge since 1990, would make a fantastic Justice.  He's smart, witty, engaging, and an all around good guy. 

He would be the first Supreme Court Justice to be a:

• Floridian
• Venezuelan
• former practicing criminal defense lawyer
• former assistant federal defender
• UM law grad

He's also been a state court judge and a practicing lawyer.  He currently serves on the Executive Committee of the Courts. 

 Other notables on the list include Charles Canady, a current Florida Supreme Court Justice.

Is flight from the police = reasonable suspicion or consciousness of guilt?

Many courts have said yes over the years. See Illinois v. Wardlow, 528 U.S. 119 (2000).


But the Supreme Court of Massachusetts has rightfully come out the other way in light of recent encounters between black men and the police:

Second, as set out by one of the dissenting Justices in the
Appeals court opinion, where the suspect is a black male stopped
by the police on the streets of Boston, the analysis of flight
as a factor in the reasonable suspicion calculus cannot be
divorced from the findings in a recent Boston Police Department
(department) report documenting a pattern of racial profiling of
black males in the city of Boston. Warren, 87 Mass. App. Ct. at
495 n.18 (Agnes. J., dissenting), citing Boston Police
Commissioner Announces Field Interrogation and Observation (FIO)
Study Results, http://bpdnews.com/news/2014/10/8/boston-policecommissioner-
announces-field-interrogation-and-observation-fiostudy-
results [https://perma.cc/H9RJ-RHNB].13 According to the
study, based on FIO data collected by the department,14 black men
in the city of Boston were more likely to be targeted for
police-civilian encounters such as stops, frisks, searches,
observations, and interrogations.15 Black men were also
disproportionally targeted for repeat police encounters.16 We do
not eliminate flight as a factor in the reasonable suspicion
analysis whenever a black male is the subject of an
investigatory stop. However, in such circumstances, flight is
not necessarily probative of a suspect's state of mind or
consciousness of guilt. Rather, the finding that black males in
Boston are disproportionately and repeatedly targeted for FIO
encounters suggests a reason for flight totally unrelated to
consciousness of guilt. Such an individual, when approached by
the police, might just as easily be motivated by the desire to
avoid the recurring indignity of being racially profiled as by
the desire to hide criminal activity. Given this reality for
black males in the city of Boston, a judge should, in
appropriate cases, consider the report's findings in weighing
flight as a factor in the reasonable suspicion calculus.
Here, we conclude that the police had far too little
information to support an individualized suspicion that the
defendant had committed the breaking and entering. As noted,
the police were handicapped from the start with only a vague
description of the perpetrators. Until the point when Carr
seized the defendant, the investigation failed to transform the
defendant from a random black male in dark clothing traveling
the streets of Roxbury on a cold December night into a suspect
in the crime of breaking and entering. Viewing the relevant
factors in totality, we cannot say that the whole is greater
than the sum of its parts.