Paul Rashkind goes to DC, part 2

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

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


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

Federal Courts closed, but schools are open.

So is your office open today?

Are your offices open today?

Yes because schools are open.

Yes because Columbus day is not a holiday.

No because federal courts are closed.

No because Columbus day is a holiday.

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

My office is open but I'm staying home.

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

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

Hurricane Matthew policy

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

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

Courts closed Thursday and Friday (except Key West). 

Big ups to Richard Klugh

Petitions for Panel Rehearing are never granted in the 11th Circuit.  I mean, unless you are the government.  Then, every now and then, they are.  But for the defense, winning a petition for panel rehearing is really really rare; almost impossible. You literally have a better chance of being struck by lightning (1 in 12,000 if you live to 80) than getting your panel rehearing petition granted if you are a defendant. 

But Richard Klugh just put lightning in a bottle in the B-Girls case. Winning a new trial on all the counts but one was a feat in itself (the post on the original entertaining opinion is here).  But then Richard moved for rehearing on the final count.  And won!

Here's the panel:

In Count 21, the government indicted Pavlenko for an email he sent to AMEX on
April 21, 2010.  [DE 953 at 15].  To sustain a wire-fraud conviction, that email must have furthered a fraud scheme, i.e., tricked AMEX into parting with money it would not otherwise have let go.  See Op. at 7–14.  Here, the scheme allegedly worked like this: a B-girl lured a man into Pavlenko’s bar, where the man proceeded to use his AMEX card.  Looking back on the encounter from the clearer light of day, the customer decided he had been defrauded and contested the charge with AMEX.  On April 19, 2010, however, AMEX determined that the charge was not fraudulent and sent its customer a letter saying so.  See [DE Doc. 1142 at 67, 85, 88 (citing Defense Exh. SP 50)].  On April 21, for whatever reason, Pavlenko sent AMEX an email covering up his relation with the B-girl.  But by then, he had nothing left to gain:  AMEX had already upheld the charge.  In doing so, AMEX did not—and, of course, could not—rely on the April 21 email.  [Id. at 88].  And since AMEX had already approved the charge, no reasonable juror could have concluded that Pavlenko defrauded AMEX of that money through the April 21 email, which was the sole basis for Count 21.

    

Federal courts are OPEN (UPDATED)

But state courts and schools are closed.  I don't get it...

UPDATE -- the Supreme Court is sort of open today:

When the U.S. Supreme Court opens its fall term on October 3, the public won't see a typical First Monday in October. The court won’t hear any arguments on its opening day, instead convening briefly for announcements and the swearing in of new bar members. The cancellation of arguments is meant to recognize the Jewish holiday Rosh Hashanah while also adhering to the 1916 law that requires the court to begin its term on the first Monday in October. That's not all: the court won't sit at all on October 12, when Yom Kippur starts. And it won’t take the bench on October 10 either. That is the federal Columbus Day holiday....It appears to have taken a 'critical mass' of two Jewish justices on the court to push the court to accommodate the need of observant Jews not to be working on major holidays. That occurred in 1994, when Stephen Breyer joined the court—a year after Ruth Bader Ginsburg.

Some news if you are in the office:

1.  Notorious RGB penned this op-ed in the Times.  From the conclusion:

Earlier, I spoke of great changes I have seen in women’s occupations. Yet one must acknowledge the still bleak part of the picture. Most people in poverty in the United States and the world over are women and children, women’s earnings here and abroad trail the earnings of men with comparable education and experience, our workplaces do not adequately accommodate the demands of childbearing and child rearing, and we have yet to devise effective ways to ward off sexual harassment at work and domestic violence in our homes. I am optimistic, however, that movement toward enlistment of the talent of all who compose “We, the people,” will continue.

2.  Paula McMahon covers the insanity of how much we pay informants in the criminal justice system:

Snitching for the feds can be dangerous work, but it also can be pretty lucrative.
One South Florida man who has been working undercover as a confidential informant for 31 years has been paid about $1.5 million for his efforts, according to court records and testimony that shed some light on the usually shadowy world of informants.
The payments, which appear to have started during President Ronald Reagan's second term in office, average out to more than $48,000 per year.
The Drug Enforcement Administration won't say who he is or why he does what he does, but some information about him slipped out in court this week after the DEA used him in a heroin sting.

3.  P.S. We pay the informants more than death penalty lawyers (that David Markus mentioned in the article is NOT me... sigh.).

And now, your moment of zen: