SCOTUS to hear sports gambling case

The Supreme Court is hearing the sports gambling case. It's a fascinating battle. Here's the into from SCOTUSblog's preview:

Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case next week, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

New Jersey didn’t take advantage of that exception at the time, but nearly two decades later the state appeared to have second thoughts. In 2010, the New Jersey legislature held hearings to consider the possibility of sports betting, which would benefit the state’s struggling racetracks and casinos. In 2011, New Jersey residents overwhelmingly voted to amend the state’s constitution to give the legislature the power to legalize sports betting, which the legislature did in 2012. The National Collegiate Athletic Association and the four major professional sports leagues – the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball – quickly went to federal court to challenge the 2012 law, arguing that it violated PASPA.

The state did not dispute that the 2012 law conflicted with PASPA. Instead, it countered that PASPA violates the 10th Amendment, which the Supreme Court has interpreted to prohibit the federal government from “commandeering” the states to enforce federal law. But the lower courts rejected that argument, with the U.S. Court of Appeals for the 3rd Circuit ruling that the “anti-commandeering doctrine” did not apply because PASPA does not require the states to do anything; it simply bars them from allowing sports betting. The Supreme Court denied review of that decision.

In 2014, the New Jersey legislature returned to the drawing board. It passed a new law that did not affirmatively legalize sports betting, but instead repealed existing prohibitions on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and professional sports leagues again went to federal court, where the lower courts once again ruled for the leagues. This time, the full 3rd Circuit ruled that, even though New Jersey had “artfully couched” the 2014 law as simply a “repealer,” the statute nonetheless authorized sports betting at casinos and racetracks in the state. This time the Supreme Court agreed to weigh in, granting two petitions for review by New Jersey Governor Chris Christie and the New Jersey Thoroughbred Horsemen’s Association, a group of horse-owners and trainers that also owns a racetrack in New Jersey, which the group believes can only be saved from financial ruin by money from sports betting.

In the Supreme Court, Christie and the NJTHA portray PASPA as an attempt to to take over the legislature’s job that is “dramatic, unprecedented, and in direct conflict with this Court’s Tenth Amendment jurisprudence barring Congress from controlling how the States regulate private parties.” Unlike the 2012 law, they emphasize, the 2014 law does not affirmatively authorize sports betting, but instead just repeals the existing bars on sports betting at casinos and racetracks, without giving the state any role to play in the sports betting that will follow. Indeed, they point out, during the litigation challenging the 2012 law, the federal government itself told the 3rd Circuit that New Jersey was “free to repeal those prohibitions in whole or in part.” And if the 10th Amendment bars the federal government from requiring states to regulate, they contend, it must also be true that the federal government cannot require states to keep on their books laws that they have opted to repeal – which amounts to essentially the same thing as mandatory regulation.

Judge William Pryor's op-ed in the NYT

Judge William Pryor wrote this op-ed in the New York Times, challenging Professor Steven Calabresi's plan to pack the courts with more judges. From the intro:

A prominent conservative law professor, Steven Calabresi, and one of his former students recently published a proposal to expand the federal judiciary by creating hundreds of new judgeships. A founder and chairman of the Federalist Society (of which I have been a member since 1984), Professor Calabresi promoted his “judgeship bill” as a way of “undoing” President Barack Obama’s judicial legacy. But there is nothing conservative — or otherwise meritorious — about this proposal.

Professor Calabresi, who teaches at Northwestern University, argues that federal courts are overwhelmed by their caseloads. He complains that appellate courts hear too few oral arguments and issue too many unpublished opinions, and that district courts too rarely conduct jury trials and approve too many plea bargains in criminal cases. He also contends that the federal judicial conference, the policymaking body for the federal courts, opposes more judgeships because it fears an expansion would diminish the prestige of the judiciary. None of this is true.

It's an interesting debate. I will say this -- the 11th Circuit needs more judges. They only hear oral argument in a very small percentage of cases. With more judges, there would be more oral argument and the litigants would feel like they are getting more process. It's very difficult to have a trial with real issues, only to get a non-published opinion back from the 11th Circuit that was done without the benefit of OA. We don't need 50+ judges as Calabresi says. That's silly. But a few more wouldn't hurt either.

BREAKING -- JNC makes the cut to 10 finalists for district judge

The 10 finalists for the 5 open seats in the Southern District of Florida are:

Roy Altman
Antonio Arzola
Benjamin Greenberg
David Haimes
Peter Lopez
Rodolfo Ruiz
Raag Singhal
Rodney Smith
John Thornton
Melissa Visconti

News & Notes (UPDATED)

-- The JNC's interviews are open to the public today and tomorrow.  Anyone there and want to report back?

-- The ABA has listed its top blogs and twitter accounts.

-- Rumpole may want to pay attention to the 6th Circuit case in which the Court is considering outing the anonymous blogger.

-- James Gonzalo Medina was sentenced to 25 years in prison for attempting to attack an Aventura, Florida synagogue and attempting to provide material support to a foreign terrorist organization.  

UPDATE -- Congrats to Ashley Litwin and Marc Seitles for their win in the 11th Circuit today.  Here's the opinion by Judge Rosenbaum, which starts off like this:

 Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have observed, “Sometimes the questions are complicated and the answers are simple.”1 This is one of those times.
This direct appeal of Defendant-Appellant Edriss Baptiste’s sentence for access-device fraud and aggravated identity theft requires us to determine how to account in Baptiste’s criminal-history calculation for Baptiste’s ostensible sentence from a prior state case. More specifically, a state court purported to sentence Baptiste for a marijuana-possession conviction to “198 days time served,” referring to time he spent in U.S. Immigration and Customs Enforcement detention. Based on this disposition, the district court scored Baptiste two criminal-history points and therefore concluded his criminal-history category was II.
The parties debate whether time in Immigration custody can ever qualify as “imprisonment” for purposes of determining criminal history under the Guidelines. While the parties raise interesting arguments, we instead resolve this case by concluding that where, as here, a defendant has pled guilty to a prior crime and adjudication has been withheld, that disposition must be counted for a single criminal-history point under § 4A1.1(c) of the Guidelines, regardless of whether the sentencing court purported to impose—or even actually imposed—198 days or no days of imprisonment. For this reason, we vacate the sentence imposed by the district court and remand for resentencing, using a criminal-history category of I.

Back at it.

I hope everyone had a wonderful Thanksgiving weekend. It’s back at it, this Monday morning. It’s been almost a year, and we still do not have a U.S. Attorney nominee. But our acting U.S. Attorney, Ben Greenberg, will be interviewing (along with 23 others) for one of the 5 open judicial slots this week. The JNC will be cutting the list to 10, and then our 2 Senators will send 5 names to the President. It’s not altogether clear whether the President will nominate those 5 people or go with 5 of his own. And to come full circle, recent whispers around town have one of those JNC members, Jon Sale, as the emerging candidate (again) for U.S. Attorney.

The big cell-phone privacy case, Carpenter v. U.S., will be argued this week in the Supreme Court. I argued the same issue before the en banc 11th Circuit in U.S. v. Quartavious Davis, so this is an issue close to home for me. A few members of the 11th Circuit questioned whether the 3rd party doctrine should apply in our new technological world. This morning in the Washington Post, the lawyer who successfully argued Smith v. Maryland (one of the 2 leading 3rd party cases), wrote an op-ed saying (rightfully) that those old cases should not apply to our cell-phones:

That new world is defined by the rapid increase in sophisticated — and invasive — technology. It is also defined by a relentless and pervasive assault on privacy. As journalist Julia Angwin has shown in her book “Dragnet Nation,” the new digital world can track our movements, seize our secrets, manipulate our finances and much more.

In such a world, the very notion of a “legitimate expectation of privacy” seems antique.

There is evidence that the courts are catching on. Most predictive, perhaps, are the words of Justice Sonia Sotomayor, concurring in a 2012 case holding that the clandestine and warrantless attachment of a GPS tracking device to a defendant’s car was an unconstitutional search. Sotomayor suggested that “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” As Sotomayor noted, “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the email addresses with which they correspond to their internet service providers; and the books, groceries and medications they purchase to online retailers.”
Sotomayor is right. The Supreme Court should develop a modern Fourth Amendment doctrine. Such a test would recognize the legitimate claims of law enforcement but set objective boundaries — such as the duration of an intrusion or the nature of the data seized — that constrain those claims. The Carpenter case is the court’s opportunity to do so.

The world has changed profoundly since I argued Smith v. Maryland. And as Oliver Wendell Holmes Jr. taught us long ago: “The life of the law has not been logic; it has been experience.”

RIP William J. Surowiec, Esq.

RIP William J. Surowiec, Esq.

A great lawyer and super nice guy. And his wife is the best. So sad.

It's been an awful week in the District. Rumpole has a nice post about him here.

A celebration of his life will take place Saturday, November 25, 2017 at 2:00 pm., at the Key Biscayne Yacht Club.

RIP William M. Hoeveler

RIP William M. Hoeveler, a long-time well-respected judge in our District.  here:

The Herald has a nice and detailed obit

Hoeveler even drew praise from the most infamous defendant ever to appear in his courtroom, the deposed Panamanian General Manuel Noriega, who was captured by U.S. forces that invaded Panama in late 1989, leading to a nationally covered Miami trial that was “the mother of all battles in the war on drugs,” as one prosecutor later described it.

“The one shining light through this legal nightmare has been your honor,” said Noriega, who was convicted of cocaine trafficking and racketeering charges in 1992. “You have acted as honest and fair as anyone can hope for.”
***
His judicial secretary for nearly 40 years, Janice Tinsman, once wrote that while Hoeveler is “often considered by people to be the epitome of what a judge should be ... there is another thing he has taught us that many people do not realize, and that is we are on a journey in our lives.”

“I have seen him journey back from a stroke because he believed in what he did in serving the public,” Tinsman wrote in 2011, when Hoeveler won the Federal Bar Association’s Judicial Excellence award, named after the late U.S. District Judge Edward B. “Ned” Davis. “He did not just sit down and not come back. I have seen him journey back from the loss of his wife [Griff] only a couple of months after suffering his stroke.

“He did not quit. ... He loves the law. He did not give up. ... He has shown us that he is a man of faith in God. He has shown us that our paths in life, no matter what has put us on that path or what is in front of us, that we must always journey on.”

RIP Judge Kenneth Ryskamp

RIP Judge Kenneth Ryskamp.  He was 85.  A nice man, who served this District for a very long time.

From his Wiki page:

Education and career

Born in Grand Rapids, Michigan, Ryskamp received an Artium Baccalaureus degree from Calvin College in 1955. He received a Juris Doctor from University of Miami School of Law in 1956. He was a law clerk for Judge Mallory H. Horton of the Florida Third District Court of Appeal from 1957 to 1959. He was in private practice of law in Miami, Florida from 1959 to 1986.^[1]

Federal judicial service

Ryskamp was nominated by President Ronald Reagan on March 12, 1986, to a seat on the United States District Court for the Southern District of Florida vacated by Judge Joe Oscar Eaton. He was confirmed by the United States Senate on April 23, 1986, and received commission on April 24, 1986. He took the judicial oath and commenced service on May 2, 1986. He assumed senior status on January 1, 2000.^[1] As of January 2017, Ryskamp has taken inactive senior status, meaning that while he remains a federal judge, he no longer hears cases or participates in the business of the court.^[2]

“I had no recollection of this meeting until I saw these news reports.”

That was Attorney General Jeff Sessions. Many criminal defendants have (wrongfully) been prosecuted for 1001 violations (false statements) or obstruction for similar statements. One senator made this point to the Attorney General:

As Democrats repeatedly put heat on Mr. Sessions over the evolution of his testimony before Congress, Representative Hakeem Jeffries, Democrat of New York, invoked an unexpected ostensible ally: Senator Jeff Sessions.

Holding up a speech he said Mr. Sessions had given on the Senate floor during the proceedings to remove President Bill Clinton from office, Mr. Jeffries said Mr. Sessions had then justified his vote for removal by saying that he would not hold the president to a different standard than a young police officer he had prosecuted years before for lying under oath.

“You stated that you refused to hold a president accountable to a different standard than the young police officer who you prosecuted,” Mr. Jeffries said. “Let me be clear: The attorney general of the United States of America should not be held to a different standard than the young police officer whose life you ruined by prosecuting him for perjury.”

Mr. Sessions vehemently disagreed with the comparison, repeatedly calling Mr. Jeffries suggestion “unfair.” “Mr. Jeffries, nobody, nobody, not you or anyone else should be prosecuted, not be accused of perjury for answering the question the way I did in this hearing,” Mr. Sessions said. “I have always tried to answer the questions fairly and accurately.”

Fane Lozman is headed back to SCOTUS

Most lawyers dream of getting a golden ticket to the Supreme Court.  Fane Lozman, who isn't a lawyer, just found his second golden ticket.  SCOTUSblog describes the case this way:

With today’s grant in his lawsuit against Riviera Beach, Florida, Fane Lozman – whose eponymous website describes him as a “persistent and tenacious underdog who fought against the government seizure of 2200 homes and businesses” – joins Carol Ann Bond and Encino Motorcars in the pantheon of recent repeat litigants on the merits at the Supreme Court. But unlike Bond’s and Encino’s, Lozman’s latest case involves an entirely different set of legal issues from those presented in his first case, even though his opponent is the same.
In Lozman’s first visit to the Supreme Court, the justices ruled that Lozman’s floating home was not a “vessel” for purposes of federal maritime jurisdiction. His second case, however, arises from his November 2006 arrest at a city council meeting, after he refused to stop talking about local government corruption when a councilmember directed him to do so.
The charges against Lozman were quickly dropped, but that didn’t end the matter. Lozman filed a lawsuit in federal district court, alleging that he had been arrested in retaliation for his criticism of the government and for a lawsuit that he had filed against the city. The U.S. Court of Appeals for the 11th Circuit ruled, however, that Lozman’s retaliatory-arrest claim could not succeed because the jury found that the police had probable cause to arrest him. Now the Supreme Court will decide whether that ruling is correct.

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