The Justice Department had argued that a special master review of the classified documents was not necessary. 1101(a)(43)(P) limited the qualifying 1546(a) convictions to those expressly involving document fraud. Germain's arguments that we should apply the modified categorical approachrather than the categorical approachare misplaced. Lettman v. Reno, 207 F.3d 1368, 1370 (11th Cir. Published Our Standards: The Thomson Reuters Trust Principles. "Ascertaining that," they added, "necessarily involves reviewing the documents, determining who had access to them and when, and deciding which (if any) sources or methods are compromised.". PACER maintenance Sunday, January 8, 2023, from 5:00 AM to 4:00 PM EST. 2. 2019). 1546, it was not a conviction that qualified as an aggravated felony under 1227(a)(2)(A)(iii). The government had argued that its investigation had been impeded, and national security concerns swept aside, by an order from U.S. District Judge Aileen Cannon that temporarily barred investigators from continuing to use the documents in its inquiry. Though his lawyers have said a president has absolute authority to declassify information, they have notably stopped short of asserting that the records were declassified. 1227(a)(3)(B)(iii), the determination of whether his 1546(a) convictions qualify as aggravated felonies under 8 U.S.C. "CDC promulgated a rule of unprecedented scope. The most comprehensive solution to manage all your complex and ever-expanding tax and compliance needs. Not surprising at all. See here for a complete list of exchanges and delays. The Justice Department has said there is no indication that Trump took any steps to declassify the documents and even included a photo in one court filing of some of the seized documents with colored cover sheets indicating their classified status. I emailed Optima counsel Howard Srebnick at Black Srebnick but didnt hear back. FRAP, 11th Circuit Rules, and IOPs - Effective December 1, 2022 (Current), Pending Revisions to 11th Circuit Rules and IOPs, Proposed Revisions to 11th Circuit Rules and IOPs, Previous Revisions to 11th Circuit Rules and IOPs, Your Employee Rights and How to Report Wrongful Conduct, Eleventh Circuit General Order No. 1101(a)(43)(N) was merely descriptive). Circuit Court of Appeals pushed back on the Biden administration's argument that the CDC had "good cause" to forgo a provision of the federal Administrative Procedure Act, which requires that the government give the public proper time to review and comment on the mask rule before it was put in place, typically 30 days notice. Statistics and speeches of Chief Justice; Clerkship Program; Photos; Procedure, notices and forms. 7:44 PM EDT, Wed September 21, 2022. Even the 2019 4th Circuit decision casting doubt on the protocol, the DOJ argued in its brief, did not bar filter teams in all circumstances. 1101(a)(43)(P), because they were offenses described in 1546(a). Cannons ruling was widely decried by legal experts, and the DOJ went to the 11th Circuit after the district judge refused to amend her order to exclude classified documents from the review. The FBI last month seized roughly 11,000 documents, including about 100 with classification markings, during a court-authorized search of the Palm Beach club. Copyright 2012 - 2022 Blog for Arizona | Except where otherwise noted, content on this site is licensed under a. The inquiry ends there.Germain's argument that the is described in language in subparagraph (P) requires the use of the categorical or modified categorical approach to determine whether his 1546(a) convictions qualify is unpersuasive. Copyright 2023, Thomson Reuters. The CDC had authority to issue this order and to do so, to make the order effective immediately and the district court erred in ruling otherwise," an attorney for the Justice Department argued. UNITED STATES OF AMERICA, STATE OF FLORIDA, U.S. ATTORNEY GENERAL, FLORIDA ATTORNEY GENERAL, FLORIDA STATE ATTORNEY, FLORIDA DEPARTMENT OF CORRECTIONS, U.S. COURT OF APPEALS 11TH CIRCUIT, U.S. DISTRICT COURTS 11TH CIRCUIT, JUDICIAL QUALIFICATIONS COMMITTEE, THE FLORIDA BAR, 5TH DCA, 1ST DCA, 2CND JUDICIAL CIRCUIT, 3RD JUDICIAL CIRCUIT, U.S. DEPARTMENT OF JUSTICE, FLORIDA SUPREME COURT, 9TH JUDICIAL CIRCUIT, U.S. SUPREME COURT, FDLE, PACER and DFS. On Appeal from the United States District Court for the Southern District of Florida REPLY BRIEF OF THE . At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. PACER users and Case Management/Electronic Case Files (CM/ECF) e-filers may experience intermittent authentication issues when logging in, and intermittent connection issues when making payments through Pay.gov. "Plaintiff suggests that he may have declassified these documents when he was President. Circuit Assignments. All Rights Reserved. The filing in the U.S. Court of Appeals for the 11th Circuit came hours before attorneys for Trump and the DOJ were set to appear in federal court in Brooklyn, New York, to speak with the special . ), In the Korf case, federal prosecutors in Cleveland obtained a search warrant last year to seize fraud and money-laundering evidence from the Miami offices of a family of companies that, for simplicity, Ill call Optima. 371, and three counts of making a false statement in an immigration application, in violation of the fourth paragraph of 18 U.S.C. The industry leader for online information for tax, accounting and finance professionals. It's unclear what it would mean if the appeals court overturns Mizelle's ruling, as most masking requirements have been relaxed across the country for months. To assure that prosecutors involved in the prospective case do not see privileged material, the DOJ calls on a different, walled-off team to screen the seized documents and emails. In its first published decision addressing the governments handling of privileged documents and emails obtained in a raid on a business offices, the 11th Circuit ruled in United States v. Korf that targets of a DOJ money-laundering investigation were unlikely to succeed in showing that filter teams, per se, are a violation of targets 6th Amendment right to counsel. The IJ also determined that Germain was not eligible for cancellation of removal under 8 U.S.C. Did you encounter any technical issues? The ruling from a three-judge panel of the U.S. Court of Appeals for the 11th Circuit amounts to an overwhelming victory for the Justice Department, clearing the way for investigators to continue scrutinizing the documents as they consider whether to bring criminal charges over the storage of top-secret records at Mar-a-Lago after Trump left the White House. CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER. But the modified protocol precluded the filter team from turning over any purportedly privileged documents to the investigating prosecutors unless the companies agreed to their release or the court overruled the companies privilege designation. Centers for Disease Control and Prevention. 1101(a)(43)(P). 2014). 5. The judges repeatedly questioned Trump attorney Jim Trusty over whether there was any court precedent to back up the ex-presidents arguments against the Justice Department taking documents from Mar-A-Lago, and Judge Britt Grant noted Trump hasnt really made much of an effort to show he needs access to the documents the DOJ seized. Cannon, a Trump appointee, had said the hold would remain in place pending a separate review by an independent arbiter she had appointed at the Trump team's request to review the records. Optimas lawyers from Black, Srebnick, Kornspan & Stumpf moved to intervene in the search warrant proceeding, arguing that their clients privilege concerns were particularly acute because Optima entities are already defending civil litigation by the Ukrainian bank in Delaware Chancery Court and are facing civil forfeiture actions in Florida. It hears cases in Quebec City and Montreal. Opinions expressed here are those of the author. According to Germain, if Congress intended to penalize the entirety of 18 U.S.C. Judges who assume senior status enter a kind of retirement in which they remain on the bench, while vacating their seats, thus allowing the U.S. President to appoint new judges to fill their seats. Germain points to no other courts that have interpreted the (relating to document fraud) parenthetical in 1101(a)(43)(P) or a similar parenthetical phrase to be limiting in the way he suggests. Instead, any appeals go straight to the Supreme Court. MONTANA HEALTH OFFICIALS WEIGH NEW REGULATION FOR MEDICAID ABORTION COVERAGE. The Justice Department filed a motion requesting that the 11th Circuit Court of Appeals "end" Special Master Raymond Dearie's independent review of records seized by the FBI from Mar-a-Lago. 1229b(a) because he had been a lawful permanent resident for five or more years, had continuously resided in the United States for seven years, and had never been convicted of an aggravated felony.3 At his hearing, Germain argued that the parenthetical (related to document fraud) in 8 U.S.C. At least eight federal circuits, as the 11th Circuit noted in Mondays Korf decision, have endorsed the Justice Departments use of taint teams, either explicitly, by upholding filter team screening, or implicitly, by declining to criticize the protocol. See id. 1101(a)(43)(P) because his convictions were solely for making a false statement on an immigration application related to the payment of fees, which he did not believe was false and thus did not relate to document fraud.. Federal investigators seized more than 11,000 White House documents from Mar-A-Lago during the August searchincluding classified and top secret materialsafter Trump had previously turned over only 15 boxes of materials voluntarily and only a small number of additional classified documents in response to a subpoena. He argued that his 1546(a) convictions accordingly did not qualify as aggravated felonies because he had not participated in actual document fraud and was convicted solely for falsely stating that he had not received an unauthorized fee. He argued he was eligible for cancellation under 8 U.S.C. The Court directs the Clerk to expedite the appeal for merits disposition purposes. The 11th Circuit Court of Appeals on Wednesday agreed to fast-track a U.S. Department of Justice appeal of a case involving allegedly classified and secret documents recovered from. Further, that alien is ineligible for cancellation of removal under 8 U.S.C. A court panel could hear arguments on the matter in late November or December. The appeals court also pointedly noted that Trump had presented no evidence that he had declassified the sensitive records, as he maintained as recently as Wednesday, and rejected the possibility that Trump could have an "individual interest in or need for" the roughly 100 documents with classification markings that were seized by the FBI in its Aug. 8 search of the Palm Beach property. But in 2019, the 4th Circuit held in In re: Search Warrant Issued June 13 that the DOJs use of a filter team to review material seized from a Baltimore law firm inappropriately assigned judicial functions to the executive branch. And in July, I told you about a 5th Circuit decision that sharply criticized the Justice Department for failing to respect a targets privilege even though the DOJ had used a taint team to review seized material. ", U.S. District Judge Kathryn Kimball Mizelle in Tampa had ruled last April that, while the CDC's premise for requiring masks to reduce transmission of the disease and limit the number of hospitalizations had merit, it was "not sufficient to establish good cause.. The court is based at the Elbert P. Tuttle U.S. Court of Appeals Building in Atlanta, Georgia. 1227(a)(2)(A)(iii), the IJ determined that 18 U.S.C. Three judges at the 11th Circuit Court of Appealstwo of whom were appointed by Trumpheard arguments Tuesday after the DOJ appealed a lower court ruling appointing a third-party special master to review the Mar-A-Lago documents for any privileged materials. See, e.g., 8 U.S.C. 1101(a)(43)(H) (providing that an offense described in section 875, 876, 877, or 1202 of Title 18 (relating to the demand for or receipt of ransom) qualifies as an aggravated felony); id. 1252(a)(2)(B)(i), (D). 1546(a) was divisible because it enumerated four distinct offenses in its four paragraphs. See United States v. Germain, 759 F. App'x 866 (11th Cir. In what petitioners claim is a direct circuit split with SuperValu, the US Court of Appeals for the Eleventh Circuit held in United States ex rel. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias. Id. It stated that, while it agreed with the IJ that Germain's 1546(a) convictions were aggravated felonies under 8 U.S.C. And for the first time claiming authority to directly govern the lives of every member of the traveling public without bothering to explain its statutory authority.". FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. Enter your email address to subscribe to this blog and receive notifications of new posts by email. The inherent risk to foundational principles of our system of justice are too great, the brief said especially because that risk can be easily averted through the appointment of a special master or designation of the magistrate judge to conduct privilege review. In full, it provides: Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or, Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents; or, Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorized by law to receive such document; or, Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact--. JUST IN: Appeals court scheules oral arguments in DOJ appeal of Judge Cannon's special master order from Nov. 22 in case anyone was naively hoping for a quiet Thanksgiving week. Home > About the Court > Justices > Circuit Assignments. Circuit Court of Appeals has granted a request from the Justice Department to stay portions of a ruling by U.S. District Judge Aileen Cannon that had. The Biden administration argued on Tuesday that it had the authority to require airline passengers and other travelers to wear masks on mass transit, nine months after a federal judge in Florida vacated the federal mask mandate. In other words, state and foreign analogues of the enumerated federal crimes qualify as aggravated felonies. Id. Circuit Court of Appeals. Optimas lawyers nevertheless appealed the denial of the companies motion to enjoin any use of a government filter team at all. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 1229b(a) because he was an aggravated felon. CNN Sans & 2016 Cable News Network. 2001) (Without any descriptions of what the section numbers refer to, determining whether an offense qualifies as an aggravated felony would be a laborious process.). A panel of appeals court judges signaled Tuesday theyre likely to end a special masters review of documents the Justice Department seized from former President Donald Trumps Mar-A-Lago estate, repeatedly challenging the Trump legal teams arguments and expressing skepticism the president was unfairly targeted by the DOJ with its search. When the office was created in 1948, the chief judge was the longest-serving judge who had not elected to retire on what has since 1958 been known as senior status or declined to serve as chief judge. "You can imagine the next pandemic, there was an outbreak of measles or SARS and the CDC would want to and need to take swift action in order to control such a pandemic in the future," the attorney for the Justice Department noted. The 11th Circuit Court will expedite the DOJ's appeal of a special master appointed to review documents seized at Mar-A-Lago: Appellant's "Motion to Expedite Appeal" is granted. The NTA also alleged that Germain was removable pursuant to 8 U.S.C. This weeks 11th Circuit hearing came days after Attorney General Merrick Garland appointed John Smith to serve as the special counsel to oversee the DOJs investigations into the Mar-A-Lago documents and the aftermath of the 2020 election, so as to avoid a conflict of interest after Trump launched his 2024 presidential campaign a week ago. (Reuters) - The 11th U.S. The appeals court, too, made the same point. By April 2022, the mask mandate was becoming exceedingly unpopular within the travel industry, with airline groups lobbying to end the requirement amid increased vaccination rates and lower COVID-19 case counts. Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. 1227(a)(3)(B)(iii)had previously been sustained by the former IJ considering Germain's motion to terminate. 1227(a)(3)(B)(iii) as an alien convicted of a violation of (or a conspiracy to violate) 18 U.S.C. 2019). PACER maintenance Sunday, December 11, 2022, from 6:55 AM until 6:00 PM EST. Germain then filed an application for cancellation of removal. Germain moved to terminate his removal proceedings arguing that he was not removable under 1227(a)(2)(A)(iii) because, even though he had been convicted of a violation of 18 U.S.C. Trump's brief to the appeals court is due Nov. 10. Franais; . Contact us. Fifth Circuit Court of Appeals Reorganization Act of 1980, Elbert P. Tuttle U.S. Court of Appeals Building, Judicial appointment history for United States federal courts Eleventh Circuit, List of current United States Circuit Judges, List of United States federal courthouses in the Eleventh Circuit, "U. S. Court of Appeals for the Eleventh Circuit", United States Court of Appeals for the Eleventh Circuit. 1229b(a) provides:The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien--(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,(2) has resided in the United States continuously for 7 years after having been admitted in any status, and(3) has not been convicted of any aggravated felony. The current rules have been in operation since October 1, 1982. The issue of whether the parenthetical (relating to document fraud) in 8 U.S.C. Because all four paragraphs of 1546(a) relate to document fraud, Germain's argument that the (relating to document fraud) parenthetical in 8 U.S.C. Having consulted with the Chief Judge, the appeal will be assigned to a . Germain was admitted to the United States in 2007 as a lawful permanent resident. "This appeal is not about an urgent matter of public health. What to do about this corrupt Trump judge Aileen Cannon is a whole other matter. United States' Opposition to Mr. Worthing's Motion Under Circuit Rule 9-1.2 for Bail Pending Appeal and Remand to the District Court Pursuant to United States v. We review only the decision of the BIA, except to the extent that the BIA expressly adopts, agrees, or relies on the IJ's reasoning and findings. Patel, 294 F.3d at 470. 1101(a)(43)(P) is limiting in nature rather than descriptive of 1546(a) as a whole is fatally undermined. Rather, expected since 11CA had expedited the proceedings; a previous 11CA panel shot down T's challenge; and the issues are not complex and have been fully researched by 11CA law clerks. It was first put in place at a point when many states still had masking guidelines. 8 U.S.C. The DOJ would be able to expedite its review of documents seized from Trump at his home in exile in Mar-a-Lago, and present its Espionage Act case to a criminal grand jury for issuance of an indictment. Phalp v. Lincare Holdings, Inc. that courts must determine whether the defendant "actually knew or should have known that its conduct violated a regulation in light of any ambiguity at the time of . The Justice Department did not have an immediate comment. A quick decision by the 11th Circuit to void her order for a Special Master would end the Special Masters role. The Justice Department also didnt respond to my query on the 11th Circuit ruling. 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