All That Jazz

By Michael Caruso

As David previously posted, Chief Justice Roberts spoke at the Eleventh Circuit Judicial Conference last week. More precisely, Senior Judge Ed Carnes interviewed Chief Justice Roberts fireside chat style. While Chief Justice Roberts's comments on "leakgate" garnered the media's attention, Judge Carnes's entire interview was quite revealing.

For example, we learned that the Chief Justice is the Chancellor of the Smithsonian Institution. Chief Justice Roberts told a wonderful story about an event at the Smithsonian where he played an integral role. The Smithsonian had arranged for the legendary jazz musician Wynton Marsalis to play. Chief Justice Roberts asked whether the Smithsonian could lend Louis Armstrong's trumpet to Marsalis for the performance. And that's exactly what happened. This event marked the first time a historic instrument from the Smithsonian’s collection had been put back into actual service. Marsalis later said, “It sounded better than I thought it would sound. In terms of music, his horn sounded good because of him. When he’s not playing, you don’t think you’re going to pick up Louis Armstrong’s trumpet and sound like him.” Because jazz is the only true American art form, connecting our past, present, and future through an event like this is special. Here's a video of the performance.

Talking about our future, Justice Thomas—also interviewed at the conference—spoke at length about his concern for our country. In particular, he expressed his worry about the declining respect for governmental institutions and the rule of law.

Chief Justice Roberts speaks at 11th Circuit Conference in Atlanta

 There was a question about whether he would still attend the conference after everything that has happened in the last few days (Alito, for example, cancelled his appearance at another Circuit conference).  To his credit, the Chief showed up.  CNN reported:

Chief Justice John Roberts said Thursday that the leak of a draft opinion that would strike down Roe v. Wade is "absolutely appalling" and stressed that he hopes "one bad apple" would not change "people's perception" of the nation's highest court and workforce.

In his first public appearance since the leak on Monday, Roberts also said that if "the person" or "people" behind the leak think it will affect the work of the Supreme Court, they are "foolish."

Roberts was speaking at a meeting of lawyers and judges at the 11th Circuit Judicial Conference, while the court is on a brief recess. The justices will meet together again during their closed-door conference in Washington on May 12.

 

 Closer to home, there were two acquittals this week in federal court -- one health care fraud case in front of Judge Cooke (Frank Schwartz and Martin Roth were the defense lawyers) and one gun case in front of Judge Seitz (AFPDs Julie Holt and Ashley Kay).

May the 4th be with you

 I think Fane Lozman might be a Jedi Knight.  His Supreme Court victories are legendary.  And now he has entered the trial court arena, fighting the Sith prosecutors who tried to take him down.  Of course, he won.  And with a judgment of acquittal no less.  Here's the coverage:

Fane Lozman has made a name for himself literally fighting city hall. 

He beat Riviera Beach in the U.S. Supreme Court twice. 

Now, Lozman says he is being targeted by State Attorney Dave Aronberg because he has fought corruption in his city and county. 

Tuesday, Lozman went to trial on a criminal charge and again it went his way, as the Singer Island activist turned the tables and tried to put Riviera Beach and Palm Beach County’s state attorney on trial.  

“This is a waste of your time,” Lozman told jurors at the start of his trial on criminal mischief charges for kicking and damaging a gate on a Singer Island dock near his home. “This is about retaliation for fighting corruption in Riviera Beach.” 

Lozman attacked prosecution witnesses, including dock owner Davender Kant, a former Riviera Beach city building official.  

“Have you committed homestead fraud?” Lozman asked Kant. 

Riviera Beach police arrested Lozman last February.  

***

“This case is about destruction,” countered Assistant State Attorney Nicholas Kaleel. “It is not about who owns the dock.”  

However, that argument didn’t wash with Circuit Court Judge Ashley Zukerman, who ordered the charge against Lozman dropped right after prosecutors finished their case. 

Familiar Faces Recognized by Attorney General

By John R. Byrne

Each year the Attorney General hands out prestigious "Attorney General Awards" to DOJ employees who have made extraordinary contributions to law enforcement.  Some familiar faces received awards this year, including Trial AUSAs Chris Clark and Lisa Miller and forfeiture AUSAs Nicole Grosnoff and Peter Laserna.  That team prevailed in a six-week health care fraud trial before Judge Cohn.

Also receiving an award was Betty Alfarez.  If you've worked at the USAO down here, you know how essential Betty is to the work of the office.  Without her, the trains don't run on time.  She's a special woman and well deserving of the award.  Congrats, everybody! 

Who leaked the draft Alito opinion?

SuperSurvey

6th Circuit issues crazy ruling...

 ... saying judges can't reject appellate waivers in plea agreements.  

Appellate courts seem to be okay when trial judges reject deals that see to be too lenient (like the Michael Flynn matter).  It should be the other way around, of course.  Court are there to check the government, not to act as another branch of the U.S. Attorney's office.  

Carissa Byrne Hessick agrees that the 6th Circuit opinion is bonkers:

It is clear that the 6th Circuit—which invoked the separation of powers and stated that trial judges must exercise their power to reject plea bargains “with due regard to prosecutorial prerogatives”—wants to give more power to prosecutors. But giving prosecutors the power to unilaterally demand lopsided plea bargaining terms and curtailing the power of judges to reject those bargains doesn’t “separate” powers; it concentrates power in the hands of prosecutors. Limiting the ability of judges to reject plea bargains—especially plea bargains that are unfavorable to defendants—not only weakens judges’ ability to serve as a check on prosecutorial power, but it also infringes on the constitutional power of judges as the officials tasked with entering judgments.

Our system is more and more geared toward convictions and affirmances.  Sad. 

Big arrest in SDFLA

British Virgin Islands Premier Andrew Alturo Fahie and the Caribbean territory’s port director, Oleanvine Maynard, were arrested on drug trafficking and money laundering charges Thursday after they went to a Miami airport to check on a huge cash payment that was promised them by an undercover operative pretending to be a Mexican cartel member.

That's how the Miami Herald article starts its coverage of a big undercover operation that finally led to some big arrests.  It continues:

The U.S. undercover probe actually began last fall with a series of mysterious meetings between a confidential government informant posing as the Mexican drug smuggler and a group claiming to be Lebanese Hezbollah operatives with connections to the Caribbean territory’s leaders, according to a criminal complaint and affidavit filed in the case. With their help, the U.S. informant eventually met up with BVI’s premier, Fahie, the port director, Maynard, and her son, Kadeem Maynard, to lure them into providing protection for purported Colombian cocaine shipments through the British Virgin Islands to Miami, U.S. authorities say.

Happy Earth Day! (Belated)

By Michael Caruso

 Florida is blessed with abundant natural beauty. But, there are many threats and challenges to our environment. In our backyard, there has been decades-old litigation involving the Everglades. The United States initiated this litigation in 1988 to enjoin discharges of phosphorus-laden water into the area and restore the Park and the Refuge to hydrologic conditions that support a balance of native flora and fauna. The parties entered into a consent decree in 1992—a historic agreement. According to sources, a key point in the settlement talks came with then-Gov. Lawton Chiles showed up at a court hearing in 1991 and said: "We want to surrender. I want to find out who I can give my sword to." The parties, of course, continue to litigate the decree. In 2019, Judge Moreno rejected a motion—without prejudice—by the South Florida Water Management District to end the decree.

Other natural resources in our state are at risk. According to the Florida Department of Environmental Protection, our state is home to more large (first- and second-magnitude) springs than any other state. Springs are the window into the health of our groundwater, which is the source of 90% of drinking water for Floridians. Some springs support entire ecosystems with unique plants and animals. They also flow into rivers dependent on the spring’s clean freshwater. Florida's springs face various complex threats, including decreasing spring flows and excessive nutrients. Spring flows decrease because of declining water levels in the groundwater aquifer that sustains them, and excessive nutrients, mainly nitrate, can lead to algal growth and habit degradation.

Recently, the New York Times published an article describing the "slow-motion environmental tragedy" impacting the springs. Jeb Bush, through legislation, created the Florida Spring Initiative in 2001 to research, monitor, educate and provide landowner assistance to reduce the flow of sewage and fertilizer into springs and address declining spring flows. But, as the article details, while restoration work has reversed some damage, nutrient pollution has continued to increase. The photographs that accompany the article alternate between the beautiful and the depressing.

As Floridians, we can remember the environmental improvements made over the decades and recognize we need to work harder if our children and grandchildren are to enjoy the natural beauty of our state.