Manrique oral argument summary

From SCOTUSblog is here:

For most of Tuesday’s 53-minute oral argument in Manrique v. United States, the Supreme Court seemed caught between two very different ways of looking at the question presented — whether a notice of appeal from an initial judgment of conviction and sentence in a federal criminal case can also encompass a challenge to the district court’s subsequent restitution determination under the Mandatory Victims Restitution Act. On one hand, as Assistant Federal Defender Paul Rashkind argued on behalf of petitioner Marcelo Manrique, there is a longstanding norm that one notice of appeal suffices in criminal cases, so the court of appeals erred by holding that it could not reach Manrique’s challenge to the amount of restitution ordered in his case because he did not separately notice an appeal from that judgment. On the other hand, as Assistant to the Solicitor General Allon Kedem argued on behalf of the United States, the Federal Rules of Appellate Procedure don’t appear to cover such a situation – and it would be unprecedented to allow a notice of appeal to encompass matters that have not yet been determined. And although predicting a result based upon oral argument is always a fraught proposition, the six justices who asked questions certainly seemed to be leaning toward the government’s view by the end of the session.

And here is the transcript.  Paul Rashkind did a great job arguing with a skeptical bench.  Requiring a defendant to file two notices of appeal seems so formalistic and silly to me.  The simply solution is to have one notice that covers both the sentence and restitution.  But I guess that's too easy?

And what's with Justice Breyer -- he has just gotten so crotchety lately.  Yes, he has been really bad for defendants for a while now, but he used to be polite about it.

Paul Rashkind goes to DC, part 2

Appellate lawyer extraordinaire Paul Rashkind (from the FPD's office in Miami) will be arguing his second Supreme Court case this morning.  It's Manrique v. U.S. and SCOTUSblog has the preview here:

When defendants are convicted of federal crimes, district courts will often enter two different judgments: an initial judgment of conviction and sentence, and a subsequent, amended judgment of restitution after a hearing under the Mandatory Victims Restitution Act. In its 2010 decision in Dolan v. United States, the Supreme Court held that, so long as the initial judgment includes a deferred order of restitution, an amended, post-hearing judgment fixing the specific amount of restitution does not have to comply with the MVRA’s 90-day deadline for restitution awards, because the latter judgment was simply attaching an amount to the restitution already ordered by the former judgment. And although the court in Dolan noted the potential consequences of the interaction of such bifurcated restitution orders with appellate time limits, it left resolution of such questions “for another day.”


That day appears to have come, with the justices set to hear argument next Tuesday in Manrique v. United States. Marcelo Manrique pled guilty to one count of possession of material involving a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2), and was sentenced to 72 months’ imprisonment; a life term of supervised release; and deferred restitution – recorded as $0 in the initial judgment, but determined after a hearing to be $4,500. Manrique filed a notice of appeal from the initial sentencing judgment, but not from the amended post-hearing judgment. This shortcoming, the U.S. Court of Appeals for the 11th Circuit ruled on its own motion, deprived the appeals court of jurisdiction to consider a challenge to the appropriateness of the restitution award. Manrique asked the Supreme Court to review the lower court’s decision.

Federal Courts closed, but schools are open.

So is your office open today?

Are your offices open today?

Yes because schools are open.

Yes because Columbus day is not a holiday.

No because federal courts are closed.

No because Columbus day is a holiday.

Yes because there were two hurricane days last week and we need to get back to work.

My office is open but I'm staying home.

pollcode.com free polls

Last week, Judge William Pryor came out with this doosy:

This appeal requires us to decide two issues: whether student speech that objects to the pedagogy of officials of a public college is “school-sponsored” expression under the First Amendment and whether an invasive ultrasound constitutes a “search” under the Fourth Amendment when performed for instructional reasons instead of investigative or administrative reasons. After several employees of Valencia College encouraged students to submit voluntarily to invasive ultrasounds performed by peers as part of a training program in sonography, some students objected. The employees then allegedly retaliated against the objecting students and successfully pressured two students to undergo the procedure. The students filed a complaint against the employees, which the district court dismissed for failure to state a claim. Because the district court erroneously classified the students’ speech as school-sponsored expression and the district court erroneously ruled that the ultrasound was not a search under the Fourth Amendment, we vacate the order dismissing the complaint and remand for further proceedings.

Hurricane Matthew policy

The policy, enacted by Judge Moreno, tracks the public school decisions. If the county decides to close schools, then the courthouse in that district will also close. 

Check out the court's website for updates at: flsd.uscourts.gov

Courts closed Thursday and Friday (except Key West). 

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.