Happy New Year!

 I hope everyone has a great new year!

To celebrate, here are some of the best moments this year at SCOTUS, from Bloomberg:

Justice Amy Coney Barrett gave an unexpected hypothetical in a free speech fight over a “Trump too small” trademark that could have been seen as a dig at the former president who appointed her to the bench. 

Concerned about how the case could impact copyright law, Barrett asked what would happen if someone “wants to write a book called ‘Trump Too Small’ that details Trump’s pettiness over the years and just argues that he’s not a fit public official.” 

Barrett wanted to know what analysis the court would apply in reviewing whether a copyright restriction was permissible. Deputy Solicitor General Malcolm Stewart, who argued the government didn’t violate anyone’s constitutional rights in refusing to trademark the phrase, explained that copyright, unlike trademark law, has been used to foster free expression.

Judge Tjoflat keeps the judges working

 I’ve never seen an opinion start like this. Have you?

Let's Just Cut to the Chase, Please

Let's Just Cut to the Chase, Please 

GUEST POST BY MICHAEL CARUSO

Yesterday, the 11th Circuit decided U.S. v. Sotis (Mizelle (M.D. Fla.) with William Pryor and Marcus joining) and affirmed the defendant’s convictions for illegally exporting scuba diving equipment to Libya.

At trial, government agent Wagner testified to his interactions with Sotis. On cross-examination, the co-defendant's counsel asked Wagner whether civil penalties were an option he could have pursued instead of criminal penalties. On re-direct, the government asked whether Wagner had seen a case with “this level of willfulness.” Sotis objected, but only to Wagner’s comparison to previous cases.

On appeal, the Court concluded that Wagner’s opinion was improper but that allowing it was not plain error. Rule 701 restricts a lay witness to testimony rationally based on the witness’s perception, which is helpful to determining a fact in issue and that is not based on specialized knowledge.  Wagner’s testimony that he had never seen so much willfulness was improper because it purported to tell the jury about Sotis’s state of mind—something to which neither he nor any other witness could testify based on his rationally based perception. Permitting his testimony was error. But "harmless." In other words, mess around prosecutors, and you WON'T find out.

The evidence ruling seems clear. Interestingly, DOJ lawyers argued on appeal that Wagner's "opinion was a rational inference based on his personal participation and observations as a special agent for the Commerce Department and therefore did not exceed the permissible bounds of witness testimony." I wonder what the lesson is here. Don't ask this type of question, or ask, and even if found to be an error, the conviction will be saved by the harmless error rule.

What also should be clear but often is not is what may happen after a party "opens the door." The prosecutors argued, and the trial judge found that Sotis had opened the door. I've always believed, however, that a lawyer cannot open the door to the introduction of inadmissible evidence. The Court didn't address this point. Perhaps the Court felt that something that should be understood didn't have to be said.

Happy Holidays all.

The blog will be very slow over the next two weeks.  

Judges, check out this order.  We hope you agree!

I'm not sure I can say it any better than the excellent Federal Magistrate Judge Andrew Edison.

I too do not want anyone to work the next two weeks, and hope that you can spend as much time as you can with family and friends. pic.twitter.com/LoS4uU3SAL

— Raffi Melkonian (@RMFifthCircuit) December 19, 2023

Alex Saab returned to Venezuela

Well this will be a Merry Christmas for Alex Saab.

He was indicted before Judge Scola in a sprawling indictment alleging FCPA and other violations.  He was sitting at FDC.  But Venezuela struck a deal with the U.S. to return up to 10 Americans in custody in exchange for Saab.  From the AP:

The Biden administration has released a close ally of Venezuelan President Nicolás Maduro in a swap for jailed Americans, The Associated Press has learned.

Alex Saab, who was arrested on a U.S. warrant for money laundering in 2020, was released from custody Wednesday. In exchange, Maduro will free some, if not all, of the at least 10 U.S. citizens who remain imprisoned in Venezuela, according to a person familiar with the situation who was not authorized to discuss the matter publicly and spoke on condition of anonymity.

The White House declined to comment.

On Friday and again on Monday, two docket entries were filed under seal in the long-dormant criminal case out of federal court in Miami, an indication that a behind-the-scenes deal was in the works.

The U.S. has long accused Saab of being a bag man for Maduro. Saab’s release would be seen as a major concession to Maduro, an authoritarian leader who is himself the target of a $15 million U.S. reward for anyone bringing him to New York to face drug trafficking charges.

The deal is also likely to anger the Venezuelan opposition, who have of late criticized the White House for standing by as the leader of the OPEC nation has repeatedly outmaneuvered the U.S. government after the Trump administration’s maximum pressure campaign failed to topple him.

 

 

Chief Justice Roberts on Justice Sandra Day O'Connor

 

Chief Justice John Roberts begins his tribute to Justice O'Connor: "It has been said that the Supreme Court is like a family, a family composed entirely of in-laws." #SCOTUS pic.twitter.com/q4E01hJjdI

— CSPAN (@cspan) December 19, 2023

Mark Meadows' Removal Claim heard in the 11th Circuit (UPDATED with opinion)

Well, I wrote this post about the oral argument, and then the Court decided the case.  That was quick!  Here's the opinion by Chief Judge Pryor, denying Meadows removal claim.  The intro ends this way: "Because federal-officer removal under section 1442(a)(1) does not apply to former federal officers, and even it it did, the events giving rise to this criminal action were not related to Meadows's official duties, we affirm."

Judge Rosenbaum concurs and describes a "nightmare scenario" (not protecting former federal officers from state prosecutions) that "keeps [her] up at night."

Both opinions are worth your read -- two of our best writers on display.  And both were podcast guests, if you want to hear more about their writing styles! :) 

***

The original post about oral argument:

 Politico covered the argument here:

A federal appeals court panel took a skeptical stance Friday toward an effort by former White House chief of staff Mark Meadows to have a federal court take and potentially dismiss the state charges pending against him for allegedly trying to tamper with the 2020 presidential election results in Georgia.

All three members of the 11th Circuit Court of Appeals panel raised sharp questions about Meadows’ argument that his role as Donald Trump’s chief of staff requires federal courts — rather than the courts in Fulton County, Ga. — to oversee the case in which he, Trump and 17 others were charged in an alleged racketeering conspiracy.

During a 50-minute oral argument session in Atlanta, the appeals judges expressed particular skepticism about Meadows’ effort to claim that his work to help Trump secure a second term even after states had certified his defeat — conduct at the heart of the charges against him in Georgia — were part of his official chief-of-staff duties.

“That just cannot be right,” said Judge Robin Rosenbaum, an appointee of President Barack Obama. She specifically cited “electioneering on behalf of a specific political candidate” and “an alleged effort to unlawfully change the outcome of the election” as examples of what would fall outside a government official’s duties.

 

Peter Park(er?) passes California bar at age...

 ...17.

 Woweee.   

He's now your friendly neighborhood D.A.

More from the ABA:

Park’s father brought up the idea of attending law school when Park was only age 13, the younger Park told the Washington Post. Park’s father had discovered that his son could apply to law school in California without an undergraduate degree if he passed the College Level Examination Program tests.

Park began studying, He passed the CLEP exams while he was still in eighth grade and began applying to law schools.

Park enrolled in the four-year online program at the Northwestern California University School of Law at the same time that he was beginning high school. Park was able to graduate high school in 2021, at the end of 10th grade, by taking the California High School Proficiency Exam. Then he was able to devote full time to his law studies.

After Park passed the bar, his father self-published a book called Fast-Track Attorney: Passing the Bar at Age 17.

Park’s sisters are 16 and 13, and they are enrolled at the Northwestern California University School of Law. Park says the older sister plans to take the bar exam in July, and if she passes, she will surpass his age record.

Park told the San Francisco Chronicle that others could also follow in his footsteps.