News and Notes

1.  As posted earlier, your two new magistrates are Lauren Louis and Bruce Reinhart.  Here's a little more about them from their law firm profiles:

Lauren Louis:

Lauren’s practice includes a broad spectrum of significant complex litigation matters, including professional malpractice, intellectual property disputes, antitrust violations, civil rights enforcement, employment law, and class action litigation. She represents both plaintiffs and defendants in federal and state courts across the U.S.

Lauren participates in internal and pre-suit investigations to analyze her clients’ civil and criminal exposure. Lauren is also designated by the U.S. District Court for the Southern District of Florida to serve as a Criminal Justice Act attorney, which allows her to represent indigent criminal defendants in Federal Court. Lauren was part of the trial team that represented Florida children on Medicaid, in which the firm appeared pro bono.

From November 2001 until July 2006, Lauren served as an Assistant U.S. Attorney in the Southern District of Florida, where she tried more than 25 jury trials, wrote approximately 30 briefs, and appeared twice to argue before the Eleventh Circuit.

And Bruce Reinhart:

Bruce E. Reinhart is a nationally recognized trial attorney and distinguished former federal prosecutor. Mr. Reinhart’s extensive experience includes having served as an Assistant United States Attorney in the Southern District of Florida for over 11 years, as Senior Policy Advisor to the Undersecretary for Enforcement at the U.S. Treasury Department, and as a Trial Attorney in the Public Integrity Section of the U.S. Department of Justice in Washington, D.C.

2. Amy Howe of SCOTUSBlog will be speaking today at the Federal Bar Luncheon. It's always a great talk.


3. Speaking of the Boies law firm, David Boies is in a little bit of hot water. From Slate:

Renowned liberal attorney David Boies represented Al Gore during the contested aftermath of the 2000 election and argued for marriage equality before the Supreme Court. Boies’ progressive legacy, though, is now in question in the wake of revelations about his involvement in the Harvey Weinstein scandal. In October, the New York Times reported that Boies, who represented Weinstein starting in 2015, was aware that the Hollywood mogul had settled with several women who’d accused him of sexual misconduct. Now, Ronan Farrow’s latest blockbuster in the New Yorker has raised the possibility that Boies helped abet a sprawling and costly conspiracy to cover up Weinstein’s misdeeds.

Farrow reports that in 2016, Weinstein enlisted Kroll, a corporate investigation firm, and Black Cube, a private intelligence agency, to try to stop outlets from publishing allegations of his sexual abuse. Kroll and Black Cube agents reportedly met with journalists and victims to obtain information and attempt to quash stories. Boies’ elite firm, which represented Weinstein, contracted with these companies, potentially adding a layer of attorney-client privilege to insulate Weinstein from the intelligence work he commissioned. Boies didn’t hand off all this work to associates. Farrow reports that the lawyer personally signed a contract “directing Black Cube to attempt to uncover information that would stop the publication of a [New York] Times story about Weinstein’s abuses.” Further complicating matters, he did so while his firm was representing the Times in a libel lawsuit.

Boies told Farrow that he didn’t think this was a conflict, explaining that he was doing the Times a favor by pushing the newspaper to vet its Weinstein coverage carefully. “If evidence could be uncovered to convince the Times the charges should not be published, I did not believe, and do not believe, that that would be averse to the Times’ interest,” he told the New Yorker.

This is pretty clearly nonsense. Legal ethics expert and Georgetown Law professor David Luban told us in an email that, at minimum, Boies could have run afoul of Rule 1.7 of New York’s rules of professional conduct, which bars lawyers from representing a client “if a reasonable lawyer would conclude that … the representation will involve the lawyer in representing different interests.” There are exceptions, but they require informed consent from both clients, which Boies did not provide to the Times. “We learned today that the law firm of Boies Schiller and Flexner secretly worked to stop our reporting on Harvey Weinstein at the same time as the firm’s lawyers were representing us in other matters,” the newspaper said in a statement. “We consider this intolerable conduct, a grave betrayal of trust, and a breach of the basic professional standards that all lawyers are required to observe. It is inexcusable and we will be pursuing appropriate remedies.”

More from Above The Law here.

Another ACCA case

Here's an interesting introduction by Chief Judge Carnes in U.S. v. Davis:

This is an ACCA “violent felony” issue case. So here we go down the rabbit hole again to a realm where we must close our eyes as judges to what we know as men and women. It is a pretend place in which a crime that the defendant committed violently is transformed into a non-violent one because other defendants at other times may have been convicted, or future defendants could be convicted, of violating the same statute without violence. Curiouser and curiouser it has all become, as the holding we must enter in this case shows. Still we are required to follow the rabbit.

So, who is the rabbit?  The rule of law?

** **BREAKING -- Lauren Louis selected as new magistrate in Miami

** **BREAKING -- Lauren Louis has been selected as the new magistrate in Miami.

And as noted below, Bruce Reinhart is the new mag in West Palm Beach.

**BREAKING -- Bruce Reinhart selected as new magistrate in West Palm Beach(UPDATED)

**BREAKING -- I am being told that Bruce Reinhart has been selected as the new magistrate in West Palm Beach.

I am still waiting to hear who got it in Miami.

UPDATE -- Lauren Louis has been selected as the new magistrate in Miami.

Shanieck Maynard investiture

Congrats to Shanieck Maynard on her investiture as Magistrate Judge in Ft. Pierce. 

The judges will be selecting two new magistrates today for West Palm Beach and Miami from this list:

Miami:

Lynn Kirkpatrick, Lauren Louis, Gera Peoples, Steven Petri, and Erica Zaron

West Palm Beach:

Panayotta Agustin-Birch, Celeste Higgins, Stephanie Moon, Steven Petri, and Bruce Reinhart

Federal Bar Association Dinner

It was a big night at the South Florida Chapter of the Federal Bar Association last night.  Judge Donald Graham received the Ned Award, named after Judge Edward B. Davis.  It's a very prestigious honor and one that Judge Davis would be very proud that it was awarded to Judge Graham.  Also, Russell Koonin was installed as the new president of the organization.  Ben Brodsky is the outgoing president.  Here are some good pictures:

Give me a lawyer dog or Give me a lawyer, Dawg

Did the defendant say: Give me a lawyer dog or Give me a lawyer, Dawg.  According to the Supreme Court of Louisiana, the defendant could have wanted some sort of weird animal called a lawyer dog:

In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog”does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona, 451 U.S. 477, 101 S.Ct.1880, 68 L.Ed.2d 378 (1981).

ABSURD!!

The memes from the case have been funny.  Here's one from Slate:

Here come the (conservative) judges...

While everyone is focused on the Manafort indictment, the Senate is about to confirm 4 conservative appellate judges.  From HuffPost:

Senate Majority Leader Mitch McConnell (R-Ky.) is finally giving conservative groups what they want: a huge push on judicial confirmations.

McConnell has teed up votes this week on four of President Donald Trump’s judicial nominees. That’s an incredible amount of activity on judges in one week. For some comparison, former Senate Majority Leader Harry Reid (D-Nev.) typically scheduled a vote on one nominee per week, at most.

“I never remember the Democrats ever doing anything comparable,” Carl Tobias, a University of Richmond law professor and an expert on judicial nominations, told HuffPost on Monday.

With little fanfare, this week is shaping up to be one of Republicans’ biggest boosts to Trump’s agenda since Supreme Court Justice Neil Gorsuch was confirmed in April.

All four nominees are young (in their late 40s and early 50s), conservative and up for a lifetime post on a U.S. circuit court ― one level below the Supreme Court. None got a single Democratic vote when they were reported out of the Senate Judiciary Committee. Two were recommended to Trump directly by the Federalist Society and the Heritage Foundation, both right-wing think tanks.

The Senate cleared a procedural step on Monday night for the first nominee in the batch, Amy Coney Barrett. She is now on track to be confirmed Tuesday to the U.S. Court of Appeals for the 7th Circuit.

Democrats have raised red flags with Barrett’s past writings on abortion, which include her questioning the precedent of Roe v. Wade and condemning the birth control benefit under the Affordable Care Act as “a grave infringement on religious liberty.” One Democrat, Al Franken (Minn.), called her out for taking a speaking fee from the Alliance Defending Freedom, a nonprofit that has defended forced sterilization for transgender people and has been dubbed a hate group by the Southern Poverty Law Center.

Trump’s other court picks getting votes include Joan Larsen, a nominee to the 6th Circuit Court of Appeals who is opposed by 27 LGBTQ advocacy groups and the Leadership Conference on Civil and Human Rights; Allison Eid, a nominee to the 10th Circuit Court of Appeals who is opposed by the AFL-CIO and the Leadership Conference on Civil and Human Rights; and Stephanos Bibas, a nominee to the 3rd Circuit Court of Appeals.

JNC schedules interviews for Federal District Judge

The Federal JNC has scheduled interviews for Federal District Judge as follows:

DAY ONE November 28, 2017

9:00 am           Benjamin Greenberg

9:40 am           Migna Sanchez-Llorens

10:20 am         Rodney Smith

11:00 am         John Thornton

11:40 am         Marina Garcia Wood

12:15 – 1:00 pm          LUNCH

1:00 pm           Angel Cortinas

1:40 pm           John Kastrenakes

2:20 pm           Orlando Prescott

3:00 pm           Melissa Visconti

3:40 pm           Beatrice Butchko

4:20 pm           Raag Singhal

5:00 pm           Antonio Arzola

DAY TWO November 29, 2017

9:00 am           Roy Altman

9:40 am           Thomas Rebull

10:20 am         Michael Sherwin

11:00 am         Dina Keever-Agrama

11:40 am         Daryl Trawick

12:15 – 1:00 pm          LUNCH

1:00 pm           William Roby

1:40 pm           Peter Lopez

2:20 pm           Jeffrey Colbath

3:00 pm           David Haimes

3:40 pm           Rodolfo Ruiz

4:20 pm           Mark Klingensmith

5:00 pm           Meenu Sasser 

The 24 interviews will be narrowed to 10 recommendations to the 2 Florida Senators.  They will then recommend 5 to the White House.

Finalists for the two Magistrate Positions

Finalists for the two Magistrate Positions are:

Miami:

Lynn Kirkpatrick, Lauren Louis, Gera Peoples, Steven Petri, and Erica Zaron

West Palm Beach:

Panayotta Agustin-Birch, Celeste Higgins, Stephanie Moon, Steven Petri, and Bruce Reinhart

Judge William Pryor reviews book on Justice Scalia

11th Circuit Judge and SCOTUS short-lister, William Pryor, wrote this review of "Scalia Speaks" for Law360. Here's a snippet:

Scalia’s famous literary style shines on every page. Consider, for example, his colorful description of his “intense dislike” of legal canards — that is, “oft-repeated statements that he [wa]s condemned to read, again and again, in the reported cases.” Scalia complained, “It gets to be a kind of Chinese water torture: one’s intelligence strapped down helplessly by the bonds of stare decisis that require these cases to be read, and trickled upon, time after time, by certain ritual errors, vapidities, and non sequiturs.”

Or consider his vivid description of the remote injury caused by a package of fireworks to a railroad passenger in a famous legal case: “And when the package landed on the rails, there resulted a rather large pyrotechnic explosion, which caused a set of scales a considerable distance away on the far end of the platform to fall over, and to land on top of poor Mrs. Palsgraf, who was injured.”

The collection even offers advice from the late justice to Scribes: The American Society of Legal Writers about the “time and sweat” necessary to become a good writer: that is, one who has what the justice called “the ability to place oneself in the shoes of one’s audience; to assume only what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling.” That advice came when the society unsurprisingly honored the justice with a lifetime achievement award.

Scalia’s wit also offers laughs at every turn. To the Friendly Sons of St. Patrick in New York City, Scalia explained “the best formula for after-dinner speeches being what one of the Jesuits I had in high school advised was the best advice for kissing among unmarried couples: leviter, breviter.” In a crack about the education of new Catholic priests, Scalia then deadpanned, “For the younger clergy in the audience, that is Latin for ‘lightly and briefly.’” And then after what must have been a pause, he delivered the punch line: “I have reason to believe that that advice has been no more effective for after-dinner speakers than it has been for unmarried couples.”

The next week he spoke to B’nai B’rith in the nation’s capital, where he recalled his speech to the Friendly Sons the week before and said, “Washington is becoming more and more like New York. Just last Wednesday I was at the dinner for the Friendly Sons of St. Patrick, and here I am at B’nai B’rith. As Irving Kristol said some years ago, in reference to a Jewish mayor of Dublin, ‘Only in America!’” And then there’s Scalia’s description of one his “most humbling moments” as a turkey hunter: “I took a shot at a gobbler and he went right down — flapped a little and went down. I was so excited, I jumped out of the box stand and hurried to him. I got about five feet away and he lifted his head, looked at me, and ran away.” Scalia then explained, “And I had left my gun back in the box stand.”

Another (fake?) bomb plot uncovered in SDFLA

Another (fake?) bomb plot was uncovered in the Southern District of Florida. The FBI arrested Vincente Solano for attempting to blow up the Dolphin Mall. The FBI was tipped off by a confidential informant and then provided Solano a fake bomb. Solano will make his first appearance in front of Magistrate Judge McAliley today.

Going back to the controversial Liberty City 7 case, the FBI has made a number of these types of arrests. The Miami Herald mentions some of the convictions here:

In recent years, the U.S. attorney’s office in Miami has obtained convictions against Harlem Suarez, a Key West man who plotted to blow up a bomb on a public beach while supporting a foreign terrorist organization, and James Medina, a Hollywood man who tried to bomb a synagogue in Aventura. Suarez, 25, was sentenced to life in prison. Medina, 41, faces a 25-year prison term at his sentencing in November.

First round of Magistrate interviews this week.

The first round of interviews for the two magistrate slots (one in WPB and one in Miami) are this week. After the committee narrows the field, the judges will then conduct their interviews. The process, however, is very secretive. For example, there is no public list of who received interviews. The district court process has been much more open with requests for applicants, etc. It's a time of change in the District -- in the next 6 months, we should have a new U.S. Attorney, two new magistrates, and possibly 5 new judges. If one of those 5 judges is Michael Caruso, we will also need a new Federal Defender. Thanks to everyone for the tips that keep coming in... it's very helpful. It's also important for the public to be able to see how people are chosen for these positions.

Why are there so few oral arguments?

The National Law Journal is covering the story of the vanishing oral argument. It's not just trials that are going away, but appellate advocacy is dying as well. For example, the 11th Circuit hears oral argument in less than 20% of its cases. That's just AWFUL. From the NLJ:

Martin chaired the appellate academy's task force and initiative on oral argument. Hoping to spark a discussion with the Judicial Conference of the United States, the judiciary's policymaking arm, he sent copies of the academy's report this summer to Chief Justice John Roberts Jr. and to the chief judges of the U.S. federal appeals courts.
The academy has become concerned about the decline in the number of cases, particularly in the federal courts, that are scheduled for oral argument and the shrinking time allotted for their argument. The task force examined oral argument practices in the federal circuits and conducted a statistical analysis to evaluate the frequency of arguments and the types of cases being argued.
Federal Rule of Civil Procedure 34(b) begins with "oral argument must be allowed in every case," subject to certain exceptions. But the task force's statistics showed that oral argument in many circuits instead are either not being allowed or are otherwise not being scheduled. The overall average percentages of oral arguments in the circuit courts, excluding the Federal Circuit, ranged from the mid-teens (Third, Fourth, Sixth and Eleventh) to the low 30s (First, Second and Tenth) and to 45 percent (Seventh) and 55 percent (D.C. Circuit). The lowest was the Fourth Circuit, which heard oral argument in only 11 percent of its cases.

"Finally, there is good ol’ common sense."

"Finally, there is good ol’ common sense." That's the 11th Circuit's newest judge, Kevin Newsom, who is quickly making a name for himself as a folksy, fun writer. From the intro to this opinion:

It is hornbook law that rights of all kinds—even constitutional ones—can be waived. For instance, a criminal defendant might for one reason or another elect to waive his Fourth Amendment freedom from unreasonable searches, his Fifth Amendment privilege against self-incrimination, or his Sixth Amendment right to the assistance of counsel. In the same way, a civil litigant can waive his Seventh Amendment right to a jury trial or his right, rooted in the Fourteenth Amendment, to be free from overbroad assertions of personal jurisdiction. So too, a sovereign State may choose to waive its Eleventh Amendment immunity from suit.
This case also concerns waiver—but not of some fundamental constitutional guarantee. Rather, this case is about … the Employee Retirement Income Security Act of 1974, affectionately (and hereinafter) known as “ERISA.” In particular, this interlocutory appeal requires us to determine whether a defendant is capable of expressly waiving the six-year statute of repose contained in ERISA Section 413(1), 29 U.S.C. § 1113(1)—or whether instead, the protection provided by Section 1113(1) is so essential, so fundamental, that it (seemingly almost alone among personal rights) is inherently indefeasible and unwaivable.
We won’t bury the lede. In response to the district court’s certified question, we answer yes—Section 1113(1)’s statute of repose is subject to express waiver.

Complete list of District Court Applicants

In case you missed Friday's post, here is a complete list of the 45 applicants for the 5 open District Court seats in the Southern District of Florida (which will all be in the "Northern Division" -- i.e., Broward, Palm Beach, and Ft. Pierce):

1.	Altman, Roy
2.	Angueira, Roberto
3.	Arzola, Antonio
4.	Blumstein, Mark
5.	Bonner, Robert
6.	Brown, Richard
7.	Butchko, Beatrice
8.	Caruso, Michael
9.	Colbath, Jeffrey
10.	Cooperstein, Theodore
11.	Cortinas, Angel
12.	Davis, Michael
13.	Day, Timothy
14.	Greenberg, Benjamin
15.	Haimes, David
16.	Harwin, Michael
17.	Haury, William
18.	Hemming, Norman
19.	Kastrenakes, John
20.	Keever-Agrama, Dina
21.	Klingensmith, Mark
22.	Koenig, Timothy
23.	Lopez, Peter
24.	Manalich, Ramiro
25.	Marzen, Chad
26.	McCawley, Sigrid
27.	Meek, Leslie
28.	Morris, Tinesha
29.	Muniz, Michael
30.	Prescott, Orlando
31.	Rebull, Thomas
32.	Ruiz, Rodolfo
33.	Sanchez-Llorens, Migna
34.	Sasser, Meenu
35.	Sherwin, Michael
36.	Singhal, Raag
37.	Smith, Rodney
38.	Thornton, John
39.	Trawick, Daryl
40.	Villafana, Ann Maria
41.	Visconti, Melissa
42.	Ward, Kimberly 43. Roby, Willliam
44.	Williams, Dwayne
45	Wood, Marina Garcia

Status of U.S. Attorney, Magistrate Judge, and U.S. District Judge (UPDATED)

Lots of tips are coming in regarding the open positions in the Southern District of Florida.  From the tips I have received, here is what we know:

-- There was a new round of interviews in D.C. for U.S. Attorney.  It appears that the 3 new finalists are:

Jose ("Pepe") Diaz
Ariana Fajardo-Orshan
Lilly-Ann Sanchez

-- We have heard that the following have applied for the open Magistrate Judge seat in Miami.  This is not a complete list.  If you know of others, please send me a completely confidential tip.  The list of known applicants:

Jackie Arango
Barry Blum
Penny Birch
Celeste Higgins
Lynn Kirkpatrick
Lauren Louis
Ani Martinez
Stephanie Moon
Gera Peoples
Corey Steinberg
Erica Zaron

-- UPDATED— here is the complete list for the 5 open District Court seats:

1.
Altman, Roy



2.
Angueira, Roberto



3.
Arzola, Antonio



4.
Blumstein, Mark



5.
Bonner, Robert



6.
Brown, Richard



7.
Butchko, Beatrice



8.
Caruso, Michael



9.
Colbath, Jeffrey



10.
Cooperstein, Theodore



11.
Cortinas, Angel



12.
Davis, Michael



13.
Day, Timothy



14.
Greenberg, Benjamin



15.
Haimes, David



16.
Harwin, Michael



17.
Haury, William



18.
Hemming, Norman



19.
Kastrenakes, John



20.
Keever-Agrama, Dina



21.
Klingensmith, Mark



22.
Koenig, Timothy



23.
Lopez, Peter



24.
Manalich, Ramiro



25.
Marzen, Chad



26.
McCawley, Sigred



27.
Meek, Leslie



28.
Morris, Tinesha



29.
Muniz, Michael



30.
Prescott, Orlando


31.
Rebull, Thomas


32.
Ruiz, Rodolfo



33.
Sanchez-Llorens, Migna



34.
Sasser, Meenu



35.
Sherwin, Michael



36.
Singhal, Raag



37.
Smith, Rodney



38.
Thornton, John



39.
Trawick, Daryl



40.
Villafana, Ann Maria



41.
Visconti, Melissa



42.
Ward, Kimberly


43.
Roby, Willliam


44.
Williams, Dwayne



45
Wood, Marina Garcia

Who in the world will be U.S. Attorney in the Southern District of Florida?

Who in the world will be U.S. Attorney in the Southern District of Florida?

Initially, Jose Felix Diaz (“Pepe”) was one of the front runners. But the selection process has been all over the place and it appeared that he was out of the running in favor of Jon Sale. Then recently we heard it was going to be Judge Fajardo Orshan. Now, Marc Caputo, who has been all over this story, is reporting that Diaz, of Apprentice fame, is again a front-runner.

Meantime, applications for the 5 open federal judicial seats are due tomorrow. If you have tips on who is applying, please email me. All tips are anonymous of course.

Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit is the new chair of the Executive Committee.

Chief Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit is the new chair of the Executive Committee.  Our former chief judge, Federico Moreno, sits on that Committee.  It's his 4th year doing so.  He sits along with the Circuit Chiefs of the DC, 2nd, 5th, and 9th, plus two district judges.

SDFLA Honors

Two nice honors for SDFLA peeps:

1.  Clerk of Court Steve Larimore has been given the Director's Award, which recognizes outstanding performance in the federal courts nationwide:

The recipients were nominated by colleagues based on career achievements and contributions to specific projects that have benefited their home courts and the federal Judiciary as a whole.
“The Director’s Awards represent the very best achievements of the Judiciary’s exceptionally dedicated work force,” said James C. Duff, Director of the Administrative Office of the U.S. Courts. “They recognize the recipients’ outstanding leadership, innovation and efficiency, and their commitment to delivering the best possible service to the public.”
The awards were granted in five areas: “Outstanding Leadership,” “Excellence in Court Administration,” “Excellence in Court Technology,” “Excellence in Court Operations/Mission Requirements,” and “Director’s Award for Extraordinary Actions.”
***
“[Larimore] has demonstrated outstanding leadership skills that have allowed him to effectively govern one of the nation’s most demanding trial courts,” Chief District Judge K. Michael Moore wrote, adding that Larimore’s achievements “have had an impact well beyond the district.” 

 2.  Judge Marcia Cooke is going to receive the Miami-Dade County Trial Lawyers Manny Crespo Award:

Congrats to both.

How will Justice Gorsuch be on criminal justice issues?

How will Justice Gorsuch be on criminal justice issues?

He won't be as good as Justice Scalia was, but he won't be as bad as Alito is. 

Here are some hints from yesterday's argument in Class as well as the first few arguments (via WSJ):

Justice Neil Gorsuch, President Donald Trump’s appointee to the Supreme Court, joined liberal colleagues Wednesday in sharply questioning government arguments that criminal defendants forfeit all rights to appeal after entering a plea bargain.
Since his April appointment, Justice Gorsuch’s remarks and votes nearly always have placed him on the court’s right. This week’s arguments suggested, however, that like his late predecessor, Justice Antonin Scalia, Justice Gorsuch’s legal philosophy sometimes may lead him to split with fellow conservatives and back procedural protections for criminal defendants.
Wednesday’s case involved Ronald Class, a High Shoals, N.C., retiree who in May 2013 illegally parked his Jeep Wrangler in a U.S. Capitol lot. Police found the vehicle contained several loaded weapons, including a 9mm Ruger pistol, a .44-caliber Taurus pistol and a .44- caliber Henry rifle. Although he had a North Carolina concealed weapons permit, Mr. Class was arrested under a federal law prohibiting guns on the Capitol grounds.
According to the government’s brief, Mr. Class told Federal Bureau of Investigation agents that “he was a ‘Constitutional Bounty Hunter ’ and a ‘Private Attorney General’ who traveled the nation with guns and other weapons to enforce federal criminal law against judges whom he believed had acted unlawfully.”
Mr. Class later reached a plea bargain with prosecutors and was sentenced to 24 days’ imprisonment and a year of supervised release. Although plea bargains typically restrict appeals from defendants, Mr. Class then sought to have his conviction overturned on several grounds, including that he had a Second Amendment right to take his guns to the Capitol.
A federal appeals court dismissed the appeal in an unsigned order, noting that Mr. Class had told the trial judge he understood the plea bargain required him to forgo all but a few technical forms of appeal. But on Wednesday, an attorney for Mr. Class said that Supreme Court precedents established that defendants retained the right to raise constitutional claims even after pleading guilty.
A Justice Department attorney, Eric Feigin, argued that the government was entitled to assume Mr. Class had waived all appeals. “There’s a serious information imbalance here. Only the defendant knows what kinds of claims he might want to bring after a guilty plea and in what respects he doesn’t intend his guilty plea to be final,” he told the court.
Justice Gorsuch appeared incredulous. “Mr. Feigin, is this information asymmetry problem a suggestion that the government lacks sufficient bargaining power in the plea bargaining process?” he asked.
“No, your honor,” Mr. Feigin said.
Federal and state prosecutors win more than 90% of criminal cases without persuading a jury; defendants nearly always agree to plead guilty under threat of harsher punishment should they be convicted after opting for a trial.
Picking up on a question by Justice Stephen Breyer, Justice Gorsuch suggested that a defendant who pleads guilty admits the factual allegations in an indictment—but not that those actions necessarily are illegal.
“You’re admitting to what’s in the indictment. Isn’t that maybe the most natural and historically consistent understanding of what a guilty plea is?” Justice Gorsuch said.
Justice Gorsuch’s remarks Wednesday followed similar pro-defendant positions he took Monday. That case involved a Filipino with permanent U.S. residency who had been convicted of burglary and who argued that the criteria Congress adopted authorizing deportation of immigrants for committing violent crimes were unconstitutionally vague.

Peter Fay Inn of Court discussion

For those of you who are interested, I will be presenting at the Peter Fay Inn of Court tomorrow evening (Wednesday) on "Privacy, the Fourth Amendment, and the Supreme Court in the Cell Phone Era."  It's a fascinating area of the law and the Supreme Court is going to hear the cell-site data case this Term, one of the biggest 4th Amendment cases in quite some time.  The talk is at 6pm at La Loggia. 

Please RSVP via email to chayes@stu.edu or phone (305) 623-2324.

"Control the clock and control the game. Winning coaches in many sports have employed this strategy."

Judge Rosenbaum, a Chapel Hill native, wrote an opinion today with the lede as an ode to Dean Smith:  "Control the clock and control the game. Winning coaches in many sports have employed this strategy."  Here's the footnote associated with that sentence:

The legendary basketball coach Dean Smith was famous for, among other things, his Four Corners offense, a strategy all about controlling the clock. Dean Smith Dies at Age of 83, ESPN.com (Feb. 12, 2015), http://www.espn.com/mens-college-basketball/story/_/id/12296176 /dean-smith-former-north-carolina-tar-heels-coach-dies-age-83 (“Smith’s Four Corners time-melting offense led to the creation of the shot clock to counter it.”). During his 36 seasons coaching basketball at the University of North Carolina in Chapel Hill, Coach Smith amassed a .776 winning percentage that included eleven Final Four appearances, two national championships, seventeen ACC regular-season titles, and thirteen ACC tournament titles. Id. When Coach Smith passed away, the Tar Heels paid tribute to him by running his Four Corners offense in their first offensive possession in the game following his death. UNC Honors Dean Smith by Running Four Corners Offense, SportsIllustrated.com (Feb. 21, 2015), https://www.si.com/college-basketball/2015/02/21/dean-smith-unc-four-corners-tar-heels.

The rest of the intro, in case you are interested in what the case was about:

And Plaintiff-Appellee Jim Barrett asserts that the lesson wasn’t lost on Defendant-Appellant Walker County School District, either. To speak at a Walker County Board of Education meeting, the District requires a member of the public to first go through a process that can consist of several steps. If the entire process is not completed at least one week before the Board meeting, the citizen may not speak at the meeting. Yet critically, the Board completely controls the timing of a step at the beginning of the process. If the Board drags its feet in completing this step, a member of the public cannot finish the rest of the steps in time to be permitted to speak.
Barrett is a public-school teacher who believes that the District has wielded this policy to unconstitutionally censor speech critical of the Board and its employees at school-board meetings. He filed suit in federal court, asserting a variety of First Amendment facial and as-applied claims in his quest for, among other things, an injunction against various aspects of the Board’s policy governing public comment at its meetings.
The district court ultimately granted Barrett a permanent injunction based on some of his facial claims and enjoined the Board’s public-comment policy. It also allowed a number of Barrett’s other claims to proceed to discovery.
Defendants now appeal the injunction. We have appellate jurisdiction under 28 U.S.C. § 1292(a)(1), which allows us to review “[i]nterlocutory orders . . . granting . . . injunctions.” After careful review, and with the benefit of oral argument, we affirm in part, vacate in part, and remand for further proceedings.

Judge Julie Carnes concurred in a written opinion.

Save the Whales!

Judge Cooke issued this interesting order involving Lolita the orca, hosued at the Miami Seaquarium: "Lolita’s lack of protection from the elements is particularly troubling given reports that Seaquarium left her in her tank as Hurricane Irma battered South Florida."

Here's what is on Judge Cooke's mind:

1. Does Seaquarium’s orca tank currently meet AWA space and shade/shelter requirements?
2. What impact, if any, would the tank’s current failure to meet AWA space and shade/shelter requirements have on the pending Motions to Dismiss?
3. If Seaquairum’s orca tank does not currently meet AWA space and shade/shelter requirements, what, if any, remedy can this Court order to correct those deficiencies?

Here's a picture of her shortly before the storm.

Save the Whales! by David Oscar Markus on Scribd

Shocker -- feds now say Scott Rothstein was lying

Shocker -- Feds now say Scott Rothstein was lying! You don't say!

From the Herald:

Convicted South Florida Ponzi schemer Scott Rothstein, a disbarred attorney who ran a $1.2 billion investment scheme out of his Fort Lauderdale law firm, will not be receiving a reduction in his 50-year prison sentence because he lied to federal prosecutors, authorities said Tuesday.

Prosecutors withdrew their pending motion to reduce Rothstein's sentence based on his cooperation in the sprawling racketeering investigation because he was “untruthful in an affidavit” filed with the federal court. Rothstein, who helped the U.S. attorney's office gain convictions of almost 30 defendants, was hoping to see many years cut from his sentence for his assistance.

That reward won't happen.

“In the judgment of the United States, the defendant provided false material information to the government and violated the terms of his plea agreement,” Assistant U.S. Attorney Lawrence LaVecchio wrote in a motion to withdraw an earlier request for a sentence reduction with U.S. District Judge James Cohn. “Therefore, in the exercise of its sole discretion, the government moves to withdraw the previously filed motion.”

U.S. Attorney's office moves to dismiss Emoluments lawsuit against President Trump

The local U.S. Attorney's office (by AUSA Carlos Raurell) has moved to dismiss the Emoluments lawsuit against President Trump.  Here is the motion to dismiss:

Goggins Motion to Dismiss Trump emoluments clause case by David Oscar Markus on Scribd

Kevin Newsom's first published opinion

Eleventh Circuit Judge Kevin Newsom penned his first published opinion, and it looks like the 11th added another interesting writer.  From the opening paragraph:

This is a tax case. Fear not, keep reading. In determining whether the IRS properly denied a taxpayer’s claimed deduction on his 2011 return, we must decide two important and (as it turns out) interesting questions. First up: Was the money that a homosexual man paid to father children through in vitro fertilization—and in particular, to identify, retain, compensate, and care for the women who served as an egg donor and a gestational surrogate—spent “for the purpose of affecting” his body’s reproductive “function” within the meaning of I.R.C. § 213? And second: In answering the statutory question “no,” and thus in disallowing the taxpayer’s deduction of his IVF-related expenses, did the IRS violate his right to equal protection of the laws either by infringing a “fundamental right” or by engaging in unconstitutional discrimination? We hold that the costs of the IVF-related procedures at issue were not paid for the purpose of affecting the taxpayer’s own reproductive function—and therefore are not deductible—and that the IRS did not violate the Constitution in disallowing the deduction.