philip r. lammens application for us district judge jul-23-2015 (redacted)

8/20/2019 Philip R. Lammens Application for US District Judge Jul-23-2015 (redacted)

1/44

T H E

LAw O F F I O E S O F

J O H N M F I T Z G I B B O N S

TAM PA THEATRE BUI L DI NG

SUI T E 7 0 0

7 0 7

NO RT H

F R A N K L I N

ST REET

OF COUNSEL

J O H N

M

F I T Z G I B B O N S ·

TAMPA, FL O RI DA

3 3 6 0 2 - 4 4 4 1

H KAy

K L E I N

CRIMINAL LAW

813)

2 2 1 - 8 8 0 0

CRIMINAL LAW

fi [email protected]

www.fitzgibbonslawtampa.com

[email protected]

December 10 2015

Neil J Gillespie

8092 SW 115th Loop

Ocala Florida 34481

Dear Mr. Gillespie:

Pursuant to your request please find enclosed the application for

u s

District Judge

submitted by Philip R. Lammens.

•

BO A RD

G ERTIF IED G RI M I N A L

TRI L

A D V O CA T E N A T I O N A L

BO A RD

O F TR I L Dv o C C Y

A N D

H O A RD G ERTIF IED G RI M I N A L TRI L LAWYER F LO RID B R

BO RD

O F

LEGAL

SPECIALIZATION


2/44

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THE LAw OFFIOES OF

JOHN M. FITZGIBBONS

707 NORTH FRANKLIN STREET

SUITE

700

TAMPA. FLORIDA

3 3 6 0 2 - 4 4 4 1

(813)

221 -8800

TO:

Neil

J

Gi l l e sp i e

8092

W

115th

Loop

Ocala

Flor ida 34481

4 .

£ .


3/44

VIA Email: [email protected] November 30, 2015

VIA Email: [email protected]

John M. Fitzgibbons, Statewide Chair Florida Federal Judicial Nominating Commission

The Law Office of John M. Fitzgibbons

707 North Franklin Street, Suite 700

Tampa, FL 33602

Email: [email protected]

Telephone: 813.221.8800

Fax: 813.228.9813

Website: www.fitzgibbonslawtampa.com

Public Records Request. F.S. § 119.07(1)(c) All public records requests shall be acknowledged promptly and in good faith. Access to public records and meetings, Art. I, Sec. 24, Fla. Const.

Dear Mr. Fitzgibbons:

This is a public records request for the application for U.S. District Judge submitted by Philip R.

Lammens, who is one of the four finalists submitted in your letter September 11, 2015 to U.S.

Senator Bill Nelson and U.S. Senator Marco Rubio, in your position as Statewide Chair of the

Florida Federal Judicial Nominating Commission.

Thank you in advance for the courtesy of a response.

Sincerely,

Neil J. Gillespie

8092 SW 115th Loop

Ocala, Florida 34481

Tel. 352-854-7807

Email: [email protected]

Cc: MuckRock, [email protected]

Enclosure: Letter September 11, 2015 to U.S. Senator Bill Nelson and U.S. Senator Marco Rubio,

from John M. Fitzgibbons, Statewide Chair, Florida Federal Judicial Nominating Commission.https://www.flsd.uscourts.gov/wp-content/uploads/2015/09/15091JNC-NOTICE-AND-LETTER.pdf


4/44


5/44


6/44

Neil Gillespie

From: "John Fitzgibbons" To: "Neil Gillespie" Sent: Monday, December 07, 2015 3:47 PMSubject: Re: Public Records Request-John Fitzgibbons-StatewideChair-Florida Federal Judicial Nominating

Commission

Page 1 of 1

12/11/2015

Mr. Gillespie, I need to review the application, then redact portions of it, such as home address,etc. I am in the middle of a busy week but hope to have it to you in the relatively near future.

ohn M. Fitzgibbons

Board Certified Criminal Trial Lawyer

The Law Offices of John M. Fitzgibbons

707 North Franklin Street, Suite 700

Tampa, Florida 33602

Telephone: (813) 221-8800

Fax: (813) 228-9813

Email:

[email protected]

Website: fitzgibbonslawtampa.com

From Neil Gillespie

Date Friday, December 4, 2015 2:54 PM

To John Fitzgibbons , Kay Klein

Cc Neil Gillespie

Subject Fw: Public Records Request-John Fitzgibbons-StatewideChair-Florida Federal Judicial

Nominating Commission

Mr. Fitzgibbons, when can I expect to get the records? Neil J. Gillespie

----- Original Message -----From: Neil Gillespie To: John M Fitzgibbons ; Kay Kline Cc: Neil Gillespie ; MuckRock Sent: Monday, November 30, 2015 4:29 AMSubject: Public Records Request-John Fitzgibbons-StatewideChair-Florida Federal Judicial NominatingCommission


7/44

I

SUMMARY FOR APPLICATION FOR U.S. DISTRICT

JUDGE

NAME: Philip R. Lammens

AGE: 38

PRESENT ADDRESS LENGTH OF RESDENCE IN FLORIDA:

I

have resided in Florida since the sumnler

of

1997, except for one year during

my

clerkship

in

Montgomery, Alabama, and for approximately one year in Fairfax City, Virginia during my

tenure with the Department

of

Justice.

M RIT L

STATUS: Married

EDUCATION:

University of Florida Levin College

of

Law, August 1999 to May 2002

Juris Doctorate with High Honors

University

of

Florida, August 1997 to May 1999

Bachelor

of

Arts with High Honors

Hofstra University, Hempstead, New York, August 1995 to August 1997 (Transferred to UF)

ACADEMIC HONORS

University

of

Florida Levin College

of

Law:

J.D. with High Honors

Graduated 8th

in

my class of218; GPA: 3.67

Order

of

the Coif

Florida Law Review,

Senior Articles Editor, Assistant Articles Editor, Member

Note selected for publication, Spring 2000: Section 404(a) ofthe Clean Water Act. The rmy

Corps

of

Engineers , Jurisdiction Over All Other Waters,

54 Fla.

L

Rev. 147 (January

2002)

Law Review Scholarship

City and Local Government Intern Award, Florida Bar, Local Government Section

Florida Bar Foundation Fellowship

University

of

Florida

B.A. with High Honors;

GPA:

3.87

Senior Thesis

Hofstra University

Academic Scholarship, August 1995 to August 1997

Athletic Scholarship, Division I Men's Cross-Country, August 1995 to August 1997


8/44

ADMITTED TO FLORIDA BAR:

November 2 2002

OTH R

STATE BARS:

None

COURT ADMISSIONS:

United States Eleventh Circuit Court

of

Appeals, July 29, 2005

United States Ninth Circuit Court

of

Appeals, September 15, 2005

United States Middle District of Florida, August 24, 2006

United States Northern District

of

Florida, August 2, 2008

LEGAL POSITIONS HELD:

United States Magistrate Judge, United States District Court, Middle District

of

Florida, Ocala

Division (July 20l2-present)

Assistant United States Attorney, United States Attorney's Office, Middle District

of

Florida,

Ocala Division (ApriI2008-July 2012)

Assistant General Counsel, City

of

Jacksonville Office

of

General Counsel, Jacksonville, Florida

(June 2006-April 2008)

Trial Attorney, United States Department

of

Justice, Civil Division, Constitutional Torts Section,

Washington, D.C. (August 2005-June 2006)

Judicial Law Clerk to the Hon. Joel F. Dubina, United States Circuit Court

of

Appeals, Eleventh

Circuit, Montgomery, Alabama (August 2004-August 2005)

Judicial Law Clerk to the Hon. Wm. Terrell Hodges, United States District Court, Middle

District

of

Florida, Ocala Division (August 2002-August 2004)

Intern, City of Gainesville, City Attorney's Office, Gainesville, Florida (September 200 I-August

2002)

Summer Associate, Holland Knight, LLP, Ft. Lauderdale, Florida (May 200 I-August 2001)

Florida Bar Foundation Fellow, Florida Institutional Legal Services, Gainesville, Florida (May

2000-August 2000)


9/44

PERCENTAGE OF

APPEARENCES

IN COURT:

FEDERAL: 90%

STATE: 10%

Trial: 99%

Appellate: 1%

LITIGATION:

In terms of number of cases, I have been assigned to and worked on more civil cases then

criminal cases as both a lawyer and judge (e.g. 70% civil to 30% criminal), but my

appearances in Court and time on the bench have favored

my

criminal cases and

nowmy

criminal docket, likely:

Civil: 30%

Criminal: 70%

NUMBER OF CASES

TRIED:

11

Jury: 5 (45%)

Non-jury: 6 (55%)

PROFESSIONAL AND

OTHER

ACTIVITIES:

Federal Magistrate Judges Association, July 2012-present

Member

of

the Standing Committee on Rules, Term 2014-2017

Board Member

of

the North Central Florida Chapter of the Federal Bar Association (includes

Alachua County in the Northern District and Marion County in the Middle District): 2008-09;

12-present

Member

of

the Marion County Bar Association: 2012-present

Member

of

the D.R. Smith American Inn

of

Court: 2012-present

Member

of

the Chester Bedell Inn ofCourt: 2007-08

nn

year

Member

of

the Jacksonville Chapter

of

the Federal Bar Association: 2007-08

Member

of

the Jacksonville Bar Association: 2006-08

Co-editor for the Jacksonville Bar Association's

The Bar Bulletin 2007-08

Volunteer Coach and Assistant Coach at the Frank Deluca

YMCA

for Youth Basketball, Soccer,

and

Flag Football, 2013-present

DECLARED

BANKRUPTCY: No.

SUED BY

CLIENT: No.

PARTY

TO

A

LAWSUIT:

No.

DISCIPLINARY

MATTERS:

No.

BELONG TO A CLUB

WHICH

DISCRIMINATES: No.


10/44

APPLICATION ORU.S.DISTRICTJUDGE

1

IndividualInformation.

(a) FullName.

PhilipRaymondAielloLammens

(b) Officeandhomeaddresswithzipcodes,telephonecodes,telephonenumberswit

areacodesande-mailaddresses.

Office:

Golden-CollumMemorial

FederalBuildingandCourthouse

207

NW

SecondStreet

Ocala,Florida34475

Telephone:352-369-4873

(c) Dateandplaceofbirth.

2

amily Status

(a) Areyoumarried?If so,statethedateofmarriageandyourspouse'sfullname

includingmaidennameif applicable.

(b) Haveyoueverbeendivorced?If so,giveparticulars,includingthedate,thename of

themovingparty,thenumberof thecase,theco·urt andthegrounds.

No.Ihaveneverbeendivorced.

(c) Namesof yourchildren,withage,andpresentoccupation of each.

3

MilitaryService.

Haveyouhadanymilitaryservice? If so,givedates,branchof service,

rank

orrate,serialnumber,presentstatus,andtype

of

discharge,if applicable.

No Ihavenotservedinthemilitary.

4


11/44

4.

Education.List(mostrecentfirst)eachcollegeandlawschoolyouattended,includingdates

of

attendance,thedegreesawardedand,

if

youleftanyinstitutionwithoutreceivingadegree,the

reasonforleaving.

University

of

FloridaLevinCollegeof Law,Gainesville,Florida.August1999toMay2002.

JurisDoctoratewithHighHonors.Classrank:8/218.GPA:3.67.

University

of

Florida,Gainesville,Florida.August1997toMay1999.

Bachelor

of

ArtswithHighHonors.GPA:3.87.

HofstraUniversity,Hempstead,NewYork.August1995toAugust1997.

AfterattendingHofstrafortwoyears,ItransferredtotheUniversity

of

Florida.

5. Court

Admissions.Listallcourtsinwhichyouhavebeenadmittedtopractice,withdates

of

admission.Givethesameinformationforadministrativebodieswhichrequirespecialadmission

to

practice.

FloridaBar,November2,2002

UnitedStatesEleventhCircuitCourt

of

Appeals,July29,2005

UnitedStatesNinthCircuitCourt

of

Appeals,September15,2005

UnitedStatesMiddleDistrict

of

Florida,August24,2006

UnitedStatesNorthernDistrictof Florida,August2, 2008

6.

Employersand Associations.Describe(mostrecentfirst)yourlawpractice,experienceand

all employmentafteryourgraduationfromlawschool,including:

(a) whetheryouservedasclerktoajudgeand,ifso thename

of

thejudge,thecourtand

thedates

of

theperiodyouwereaclerk.

(b) whetheryoupracticedaloneand,if so,theaddressesandthedates.

(c thedates,namesandaddresses

of

lawfirmsoroffices,companiesorgovernmel1tal

agencieswithwhichyouhavebeenconnected,thenature of yourconnectionwith

each,andthenames,addressesandcurrenttelephonenumbersforindividualswho

havedirectpersonalknowledgeaboutyourworkatsuchlawfirm,companyor

governmentalagency.

(d) anyotherrelevantparticulars.

My

employersandassociationssincemygraduationfromlawschool,includingmytwofederal

judicialclerkships,arelistedbelow.Ihaveneverworkedasasolepractitioner.

UnitedStatesMagistrateJudge"UnitedStatesDistrictCourt

MiddleDistrict

of

Florida,Ocala

Division(July2012-present)

Golden-CollumMemorialFederalBuildingandCourthouse

207NWSecondStreet

Ocala,Florida34475


12/44

The Honorable Anne

C

Conway,

Honorable Wm. Terrell Hodges

Chief Judge

Golden-Collum Memorial Federal Building

George C. Young U.S. Courthouse

and Courthouse

Federal Building

207

NW

Second Street

401 West Central Boulevard


Orlando, Florida 32801 352-690-6907 (Ocala chambers)

407-835-4270

352-692-4900 (Gainesville office)

The Honorable Timothy J. Corrigan

Bryan Simpson U.S. Courthouse

300 North Hogan Street

Jacksonville, Florida 32202

904-549-1300

Assistant United States Attorney, United States Attorney's Office, Middle District

of

Florida,

Ocala Division (ApriI2008-July 2012)

35 SE 1st Avenue, Suite 300


Sam Armstrong,

Vincent Citro,

Retired Assistant United States Attorney,

Assistant United States Attorney, Deputy

Chief

Chiefof the Ocala Division

for the Orlando Division

P.O. ox 5939

U.S. Attorney's Office


400 W Washington Street, Suite 300

352-470-8318

Orlando, Florida 32801

407-648-7500 (Orlando office)

Sean Flynn,

Assistant United States Attorney, Deputy Mr. Citro is presently assigned to a detail at the

Chief for the Civil Division

Department

of

Justice, National Security

U.S. Attorney's Office

Division, Counterterrorism Section.

400 North Tampa Street, Suite 3200

202-616-5192 (DOJ office)

Tampa, Florida 33602

813-274-6000

Assistant General Counsel, City

of

Jacksonville Office

of

General Counsel, Jacksonville, Florida

(June 2006-April 2008)

City Hall

117 W. Duval Street, Suite 480


The Honorable Howard Maltz, Sean Granat,

Circuit Judge Chief of Tort and Employment Litigation,

Richard O. Watson Judicial Center City

of

Jacksonville, City Hall

4010 Lewis Speedway, Suite 344 117 W. Duval Street, Suite 480

St. Augustine, Florida 32084


904-827-5600 904-630-1859

6


13/44

Trial Attorney, United States Department o Justice, Civil Division, Constitutional Torts Section,

Washington, D.C. (August 2005-June 2006)

1425 New York Avenue, Stet 8114

Washington, D.C. 20005

Paul Michael Brown,

Trial Attorney and Senior Counsel

Civil Division, Constitutional Torts

Section

U.S. Department o Justice

1425 New York Avenue NW, Suite 8114

Washington, D.C. 20530

202-616-4167

Forrest Christian,

Special Litigation Counsel

Criminal Section, Civil Rights Division

U.S. Department o Justice

6607 Beverly Avenue

McLean, Virginia 22101

202-514-8376

Judicial Law Clerk to the Hon. Joel F. Dubina, United States Circuit Court o Appeals, Eleventll

Circuit, Montgomery, Alabama (August 2004-August 2005)

1 Church Street

Montgomery, Alabama 36106

Honorable Joel F Dubina

Frank

M

Johnson U.S. Courthouse

Complex

1 Church Street


334-954-3560

Kelly Pate,

Partner, Balch Bingham LLP

105 Tallapoosa Street, Suite 200


Ms. Pate and I were co-clerks.

Judicial Law Clerk to the Hon. Wm. Terrell Hodges, United States District Court, Middle

District

o

Florida, Ocala Division (August 2002-August 2004)

Golden-Collum Memorial Federal Building and Courthouse

207 NW Second Street


Honorable Wm. Terrell Hodges

Golden-Collum Memorial Federal

Building and Courthouse

207 NW Second Street


352-690-6907 (Ocala chambers)

352-692-4900 (Gainesville office)

Jacob

J

Payne,

Shareholder, Rogers Towers

1301 Riverplace Blvd., Suite 1500


904-346-5567

Mr. Payne and I were co-clerks.

Intern, City

o

Gainesville, City Attorney s Office, Gainesville, Florida (September 200 I-August

2002) (After serving as an intern in law school, upon graduation I served briefly as a paid intern.)

200 E University Avenue

Gainesville, Florida 32601


14/44

Marion Radson,

e t i r ~ d Ci Attorney for the City ofGainesville

7. Types

of law practiced.

(a) Describe the general character of your law practice, dividing it into periods with dates

if its character has changed over the years.

(b) Describe your typical clients, and mention the areas,

if

any,

in

which you specialize.

United States agistrate udge

On July

2

2012, I was sworn into the Middle District of Florida as a United States Magistrate

Judge for an eight year term. I presently serve in the Ocala division, and have been the full-time

resident judge in this division during that period. I am assigned as the magistrate judge on each

case that is filed

in

this division (baring recusal), which includes the civil, criminal, social

security, and prisoner dockets. The civil cases are assigned to district judges throughout the

district (presently Jacksonville, Orla11do and Tampa), and I work with each of the district judges

on

these cases. I am also presently assigned with hiefJudge Conway to a Northern District

case where the judges were recused. My social security docket is shared with Judge Hodges and

Judge ~ h r p (Orlando), though I am sometimes paired with other judges. While I am presently

the assigned magistrate judge on all of the Ocala criminal and prisoner cases with Judge Hodges,

there

was

a time when the criminal docket was split between Judge Hodges and

hief

Judge

Conway and the prisoner cases were shared between Judge Hodges, Tampa district judges, and

Ft. Myers district judges. During my tenure, there have been times where I have been the

assigned magistrate judge with at least one district judge from each division of our large court.

In the Middle District, magistrate judges are given significant responsibility to handle the full

range

of

civil, criminal, social security, and prisoner cases. The Middle District's caseload ranks

among the highest nationally. In fact, presently I am the assigned magistrate judge for 636 civil

cases (whicll includes civil actions, social security appeals, and prisoner petitions) and 44

criminal cases. The district judges, thus, rely

on

the magistrate judges for assistance in efficiently

handling and managing the court's heavy dockets, from referring preliminary matters and

discovery disputes, to substantive, dispositive motions on the fi LIl range of cases filed, such as

copyright infringement, employment discrimination, and constitutional torts.

As a magistrate judge I can and do preside over consent jury trials in civil cases and class

misdemeanors. With the consent

of

the parties I take on the role

of

trial judge. When this occurs,

I manage the case from its preliminary stages, through discovery and motions practice, and up to

and including trial. Through consent, I have presided over numerous civil cases, including two

that went

to

trial. I have also presided over a class A misdemeanor

jury

trial and I regularly

preside over our Central Violations Bureau docket, which includes class B misdemeanors.


15/44

•

In addition to presiding over consent trials and misdemeanors, a significant number of litigants

consent in their social security appeals. Where the parties do not consent, I issue a report and

recommendation to the district judge.

Because I am the only magistrate judge in the Ocala division, I am the full-time duty judge. In

this capacity I review and issue search warrants for persons and property, arrest warrants, and

criminal complaints for almost all

of

the

Ocala

division cases, ranging from fraud to multi

defendant drug conspiracies. I also preside over the preliminary criminal hearings, including

initial appearances, arraignments, probable cause hearings, and detention hearings. In most

of

the

Ocala division felony cases, upon referral I will conduct evidentiary hearings on competency,

motions to suppress, and felony guilty pleas. Upon referral I will also conduct violations of

supervised release hearings and evidentiary hearings

on

petitions under 28 U.S.C. § 2255.

My civil responsibilities are also broad, as I regularly issue orders on a full range of non

dispositive civil motions, including discovery motions, preliminary pretrial matters, nl0tions to

withdraw, motions regarding amendments to pleadings, motions to strike, and requests to

proceed

n

forma pauperis I have also

had

(and continue to have) the opportunity to issue

reports and recommendations on a full range of dispositive motions referred by various district

judges, including motions to remand, motions to dismiss, motions for sumnlary judgment,

motions for class certification, and motions for at torney s fees. While many

of

these civil

motions are handled on the written pleadings, I often conduct hearings as well.

In

addition to my civil docket I am assigned a heavy federal prisoner docket, which is unique to

this division. The docket consists of civil rights complaints and habeas petitions brought by

federal prisoners under 28 U.S.C. § 2241 who are housed at the Federal Correctional Complex at

Coleman, one

of

the largest federal prisons in the country. Ocala s prisoner docket also includes

civil rights complaints and habeas petitions brought by state prisoners under 28 U.S.C. § 2254.

s

the magistrate judge I regularly handle the case management

of

these petitions and suits, as

well as motions for summary judgment that are referred from the district judge.

Lastly, as a magistrate judge I conduct settlement conferences in civil cases for the Ocala and

Orlando divisions when requested to do so by the district judge. Typically, these are cases where

the parties ask the court for a magistrate judge to serve as the mediator or where the district judge

otherwise believes the parties will benefit f rom such a mediation. Of course, like the entire civil

docket, the nature of these cases range from pay disputes to medical malpractice cases, including

one where a prisoner alleged that the BOP failed to timely diagnosis and trea t his cancer.

Assistant United States Attorney

Before becoming a United States Magistrate Judge, I served for several years as

an

Assistant

United States Attorney in this division. s an US prosecuted a full range of federal criminal

offenses such as white collar crimes (e.g., bank, tax, and social security fraud) and multi

defendant drug cases. worked with several client agencies including the FBI, ATF, DEA, IRS,

HHS, and USSS. Some of

my

more significant prosecutions involved a multi-defendant credit

card fraud scheme, a local pharmacist engaged in prescription fraud, a

bank

vice-president

involved in bank fraud, and a long-time methamphetamine manufacturer.


16/44

I also handled all misdemeanor offenses. These generally consisted of cases investigated by the

u s Forest Service, and included snlall quantity drug offenses, traffic infractions, and a range of

other infractions specific to the Ocala National Forest. These offenses consisted

of

a large

number

of

the Central Violations Bureau matters.

When I began as

an

AUSA

in April 2008 I was assigned to the civil division. After serving

several months exclusively in the civil division I began to also handle criminal matters. From

December 2008 to

November

2011 I handled both a civil and criminal docket.

As

a civil AUSA I handled all Ocala civil division matters, as well as some

Ollt of

division and

district assignments. One ofmy first assignments was as a Special AUSA for the Northern

District ofFlorida working on a higher profile case involving the

u.S.

Bureau

of

Prisons. After

that case was resolved in the government's favor I handled a second, similar, litigation also for

the Northern District. The latter case was also resolved in the government's favor and affirmed

on

appeal. State Florida, ex

reI

Freda Cobb et al

v

United States et al.,

5:

10-cv-118, 2010

WL

3211992 (Northern District

of

Fla. August 12, 2010) (Presiding Judge Richard Smoak) afJ d

Florida, ex

reI

Cobb

v

US. Dept. Justice,

440 Fed. Appx.

860,2011

WL 4360916 (11th Cir.

September

20,2011).

The BOP cases were defensive in nature, which was the primary focus

of

my civil practice. I

defended government agencies in medical malpractice actions (e.g., the U.S. Naval Hospital and

the

VA) and general tort claims (e.g., motor vehicle accidents and slip and fall suits against the

u s Postal Service). These cases ranged in complexity from soft tissue injuries to traumatic

brain injuries and death. I also handled a number of employment discrimination claims, as well

as

constitutional challenges brought against the government. Additionally, I directly represented

individual federal employees sued in their personal capacities for purported constitutional

wrongs.

In preparing each case - for mediation and ultimately trial - I engaged in a full discovery

practice: taking the deposit ions of each plaintiff, lay witnesses, expert witnesses, and treating

medical providers. I also retained, as appropriate, a host

of

expert witnesses, e.g., physicians,

psychiatrists, life care planners, economists, and mechanical engineers. In addition, I

participated, as sole and chiefcounsel, in dozens

of

mediations

or

settlement conferences on

behalf

of the

government's

client agencies. Indeed, two notable settlements involved tort claims

at

or above one million dollars: one involved a baby injured during birth and another involved a

n10ther

with permanent and life-altering injuries.

Along with defensive matters, I handled the Ocala prisoner docket, which consists largely of

habeas petitions filed by inmates housed, as mentioned, at FCC, Coleman. Inmates also filed,

and

I handled, negligence and medical malpractice claims, as well as direct constitutional claims

against correctional officers. I handled at least 70 pr isoner initiated cases as an AUSA.

Some of the other civil responsibilities I had included investigating and prosecuting affirnlative

cases brought under the False Claims Act (qui tam actions); responding to state court subpoenas

for federal documents or testinlony of federal employees; seeking the enforcement of IRS

]()


17/44

subpoenas; and obtaining an appointment by the Court to serve as a special master for

coordinating and overseeing testimony or document production in foreign litigation.

Assistant General Counsel

Prior to joining the U.S. Attorney s Office

nlY

practice as an Assistant General Counsel with the

City

of

Jacksonville consisted

of

State negligence actions against the City and its agencies,

federal constitutional claims brought against the City for the actions

of

its Sheriffs Office under

42 U.S.C. Section 1983, and constitutional claims brought directly against individual officers.

My more significant cases included the accidental shooting

of

a hotel patron by an officer, the

death of an inmate, the failed rescue of a man, and the negligent maintenance of a Jacksonville

Electric Authority facility. I also served, on a few occasions, as legal counsel to the Sheriffs

Office during their use of force hearings, which were conducted to determine an officer s

compliance with office policies and procedures.

Trial Attorney

Finally, as a Trial Attorney for the U.S. Department of Justice I represented federal employees,

including high ranking officials, sued in their individual capacities. In fact, my first assignment

was as co-counsel defending a Fourth Amendment suit brought directly against former U s

Attorney General John Ashcroft, two FBI agents, a warden, and the United States. The case

received national attention because it involved the government s use

of

the material witness

warrant during the investigation of terrorist suspects in Idaho. We drafted a substantive motion to

dismiss all of the defendants, and the

u S

Supreme Court recently decided Ashcroft s motion in

his favor. See Ashcroft v Al-Kidd 131 S Ct. 2074 (2011). I also reviewed, and made

recommendations to the Tort

i r ~ t o r

and agency counsel on requests made by federal

employees for governnlent attorney representation.

Judicial aw Clerk

Upon graduation from law school I began

my

first federal clerkship with the Hon. Wm. Terrell

Hodges. As an elbow law clerk I prepared proposed orders on a daily basis on motions for

summary judgment, motions to dismiss, and all other motions seeking relief or requesting action

by the court in civil and criminal cases. I also assisted Judge Hodges during trials, hearings, pre-

trial conferences, and appellate cases (when he sat by designation) by preparing bench

memoranda, research memoranda, and orders confirming rulings. The cases I handled, as

expected, included all matters before the court: contract disputes, tort claims, constitutional

violations, employment discrimination, and criminal matters. I spent every day of those two

years listening to and learning from His Honor, as I have continued to do as a lawyer and judge.

Immediately after my clerkship with Judge Hodges I moved to Montgomery, Alabama where I

began my one year appellate clerkship with the Hon. Joel

F

Dubina. My clerkship with Judge

Dubina was similar to my clerkship with Judge Hodges in the sense that both Judges gave their

law clerks a wide range of responsibility. For Judge Dubina I prepared bench memoranda for

cases prior to oral arguments, drafted opinions for cases after oral arguments, and assisted Judge

Dubina in screening non-oral argllment cases. I even assisted Judge Dubina in two criminal jury

trials that he presided over (when he sat by designation on the district court), by conducting

research 011 evidentiary issues and preparing jury instructions. Overall, I spent my clerkship

working closely with Judge Dubina on each of my cases, discussing them with him both before

J1


18/44

and after oral argument sessions, and learning a great deal about his commitment to the Court

and his approach to the bench. My time spent with both Judges was educational and rewarding: I

was exposed to the processes

of

the courts, the role

of

each member of the extended court family,

and

tIle

decision making

of

two fine judges.

8.

Court Appearances.

(a) Have you appeared in court

as

an attorney for a client regularly, occasionally, or not at

all? f the frequency of your appearances in court varies over the years, describe each

variance, giving dates.

Yes. As a United States Magistrate Judge I am regularly in Court and, as discussed

below, as an Assistant United States Attorney and Assistant General Counsel I made

regular court appearances.

(b) What percentage

of

these appearances was in (i) Federal Courts; (ii) State Courts

of

record, and (iii) Other Courts. What percentage

of

your litigation was (i) civil, (ii)

criminal?

The majority ofmy

appearances over the course

ofmy

career have been in federal

court (90%) versus state court (10%).

In terms

of

number

of

cases, I have been assigned to and worked on more civil cases

then criminal cases as both a lawyer and judge (e.g., 70% civil to 30% criminal), but

my

appearances

in Court and time on the bench have favored my criminal cases and

now my criminal docket (e.g., 70% criminal to 30% civil).

(c) State the number

of

cases you tried to verdict or judgment (rather than settled) in

courts

of

record, indicating whether you were sole counsel, lead counsel, or associate

counsel.

I have tried

11

cases to verdict. I was sole counsel in 9, lead counsel in

1

and

associate counsel in

1.

(d) What percentage oft llese trials was (i) jury, (ii)

non

jury?

Jury:

5

jury or approximately

45%.

Non-jury: 6 bench or approximately

55%.

United States Magistrate udge

As

a magistrate judge for the Middle District I am regularly in federal court. While the majority

of

my caseload is civil in nature, the majority ofmy hearings steam from the criminal docket. I

am typically on the bench several times a week and sometimes several times a day. I regularly

conduct initial appearances, arraignments, preliminary hearings, detention hearings, and felony

change

of

plea hearings. Occasionally I also conduct evidentiary hearings on competency,

motions to suppress, violations

of

supervised release, and petitions brought under 28 U.S.C.

2255.

I have also conducted

jury

selection in a felony case for the district judge

on

the consent

o

2


19/44

the

parties. On the civil side my hearings typically involve discovery disputes and general case

management conferences, though I have held hearings on substantive motions, including, more

recently, a motion for class certification. I also conduct mediation conferences

on

a monthly

basis.

I have had the opportunity to preside over three consent jury trials and one bench trial as a

magistrate judge. The first trial was a consent jury trial in a class A misdemeanor case where a

dentist failed to file his income tax returns. The other two cases were civil consent jury trials: one

involved a plaintiff who alleged an unlawful strip search during a traffic stop, the other involved

a husband and wife who alleged that the wife was terminated from her jo with a police

department in violation

of

her first amendment right to associate with her husband, after her

husband publicly complained about her boss, the police chief. Lastly, the bench trial involved the

removal of a monitoring device on a manatee in the Crystal River. Once a month I also hear

disputed Central Violations Bureau misdemeanor cases as the presiding judge, where I will also

hear guilty pleas and sentence the misdemeanor defendants.


During

my

service as an Assistant United States Attorney, beginning in April 2008 through July

2012, I principally practiced in federal court on a regular, usually daily basis. In this capacity my

court appearances where typically in criminal cases (likely 90 ) versus my civil appearances

(10 ).

Almost all of

my

court appearances were as sole counsel (950/0) as opposed to as lead or

associate counsel (5 ).

On the criminal side, I tried three felony drug cases to a jury: one as sole counsel involving the

transportation of cocaine, which was part of a larger, multi-defendant case involving an escaped

felon, where the transporter went to trial and the other defendants pleaded guilty United States.

v Priscilla Richardson, Case No. 5:11-cr-34 (M.D. Fla. March 27-29, 2012)); one as chief

counsel involving the transportation

of

10 kilograms

of

cocaine in a hidden compartment

of

a

vehicle, which involved two defendants, with one commencing to trial United States v. Jose

Becerra-Becerra, Case No. 5:09-cr-52 (M.D. Fla. February 21-23,2010)); and another involving

a marijuana grow-house United States v. Joseph Castellano, Case No. 5:10-cr-16 (M.D. Fla.

August 2-3,2010)).

I also tried, as sole counsel, six misdemeanor bench trials stemming from class B misdemeanors

committed on the Ocala National Forest.

In addition to these federal trials, I handled all of the hearings that generally occur in a felony

matter: the initial appearance, bond hearing, arraignment, change

of

plea, and sentencing. I also

handled, as sole counsel, suppression and competency hearings. Finally, I handled the initial

appearances bond hearings and subsequent sentencing hearings for a significant number of

violations of supervised release.

Of the typical hearings in a felony case, including the violations of supervised release, I handled

a significant number, on occasion covering ten or so such hearings a week. As can be expected,

the hearings ranged in complexity from agreeable bond conditions to role adjustments under the

U.S.

Sentencing Guidelines and the application

of

the safety valve provisions in a drug case.

13


20/44

Additionally, I presented numerous criminal complaints, arrest warrants, and search warrants

, before the u s Magistrate Judge in Ocala. I also covered the presentment of wiretap applications

to the u s District Judge for fellow AUSAs conducting such investigations here.

On the civil side, shortly after I began my service as an AUSA I served as associate counsel in a

four day state jury trial involving foreclosure, contract issues, and the United States entitlement

to sovereign immunity. While the jury returned a verdict against the United States, the First

District Court of Appeals reversed the circuit court in all respects and held, as we had argued,

that no claim could be raised against the United States, which was entitled to sovereign

immunity. United States

v

Morrison

28

So.3d 94 (Fla. 1st DCA 2009).

I also handled, as chief counsel, a preliminary injunction hearing before the U.S. district court

where individual tenants

of

a low income housing development sought an injunction against

HUD. I initiated, and prosecuted, petitions to enforce IRS summonses before the district court

and defended the Social Security Administration in an appellate hearing before the u S

Magistrate Judge. I also appeared in State court and argued a motion to dismiss on behalf

of

the

u.S. Postal Service.

Assistant General Counsel

Prior to serving as an AUSA, my civil courtroom experience as an Assistant General Counsel

was

generally before the Circuit Court in Duval County, defending the City in tort claims. n this

capacity I appeared before the court on a weekly or monthly basis to argue motions ranging from

challenges to a plaintiffs administrative notice to more complex issues involving the City s

entitlement to sovereign immunity on a motion to dismiss. Although I handled several federal

cases in the Jacksonville division for the Middle District, twice assisting our Chief Deputy

General Counsel at that time, Cindy A. Laquidara, in First Amendment cases, my actual

appearances in court were all before the State and all involved civil litigation. n addition to the

appearances to argue motions to dismiss or for scheduling hearings, I did serve, as associate

counsel, in a three day state jury trial involving issues

of

easement, property, and water rights.

Trial ttorney

My caseload at the Department of Justice was entirely civil and involved solely federal court

litigation. While I did not have an opportunity to make an appearance in court in this role, I did

engage in a motions practice and defended the United States in an appeal before the United

States Court of Appeals for the Ninth Circuit in an immigration, asylum case.

Judicial

Law

Clerk

Of course

as

a judicial law clerk to two federal judges over the course of three years, I spent my

time working on federal litigation, first at the district court level and then at the appellate level.

9

Litigated Matters.

Describe ten of the most significant litigated matters which you personally

handled as an attorney and give the citations, if the cases were reported. Give a capsule summary

of the substance of each case and a succinct statement of what you believe to be the particular

significance of the case. Identify the party or parties whom you represented, describe in detail

the

nature of your participation in the litigation and the final disposition of the case. Also state

as

to

each case:


21/44

(a) The dates of the trial period or periods;

(b) The

name of

the court and the judge before

whom

the case was tried;

(c) The individual name, address and telephone numbers of all co-counsel and counsel for

each

of

the other parties.

United States Magistrate Judge:

For the following cases I was the presiding judge.

1 Lynn Wolfe as personal representative the estate Daniel Wolfe et

ale

v Florida

Department Corrections 5: 10-cv-663 (M.D. Fla.) (Consent filed June 2012 and assigned to

me

July 2012. Settled

on

the eve

of

trial set for January 2013.).

Daniel Wolfe died

on

August 3, 2006, from an asthma attack while incarcerated at Lake

Correctional Institution, a Florida Department of Corrections facility. Mr. Wolfe s mother, Lynn

Wolfe, brought this action as the personal representative for the Estate

of

Daniel Wolfe,

on

behalf

of

the estate and

on behalf of

herself as his survivor, under Florida's Wrongful Death Act,

the

Eighth Amendment to the U.S. Constitution, and the

American s

with Disabilities Act. This

case was significant not only because it was

my

first consent case, for which I directly handled

substantive motions, discovery disputes, and pretrial matters, but because the claims under the

ADA were unique, even

if

not unprecedented.

Plaintiff claimed that the State was deliberately indifferent to her son s known medical needs and

sought compensatory damages under the ADA insofar as the DOC failed to provide Mr. Wolfe

with reasonable accommodations for his asthma - i.e., the means to promptly communicate with

prison officials

ifhe

was having a life-threatening asthma attack, such as a different housing

assignment or

an

emergency call button. On summary

judgment

the State challenged the severity

of Mr. Wolfe s asthma, and thus the need for

an

accommodation, and argued, nevertheless, that a

reasonable accommodation was made. As

Plaintiff

presented material issues of fact as to the

extent

of

her

son s

asthma, the

DOC s

knowledge

of

it, and the nature

of

the accommodations

provided, I denied summary judgment. The case ultimately settled on the eve of trial,

but

not

before other issues were also addressed in the case, including numerous motions in limine and

Plaintiffs motion to exclude several witnesses.

Counsel for Plaintiff:

Counsel for Defendant:

Dante Trevisani Samuel R. Mandelbatlm

Florida Justice Institute, Inc. Stephen A. Spaid

3750 Miami

Tower

Mandelbaum, Fitzsimmons, Hewitt & Cain, PA

100 SE 2nd Street

100 S Ashley Drive, Suite 1100

Miami, Florida 33131 Tampa, Florida 33602

305-358-2081 813-221-0200

2 United States

v

Thomas W Harter 5:13-cr-26 (M.D. Fla.) (Consent filed and assigned to me

May

2013. Jtrry trial September 16-17, 2013.).

In this class A misdemeanor, the United States charged Dr. Harter, a local dentist, with failing t )

file

his income tax returns in six separate counts for a six year period. Dr. Harter consented to

the

jurisdiction of a magistrate judge and the case proceeded before me. Dr. Harter, who proceeded

15


22/44

with counsel through the trial, filed numerous pretrial motions and motions in limine where he

claimed immunity to prosecution and challenged the government s evidence. After deciding

those motions, along with Dr. Harter s voir dire and

jury

instruction challenges, the case

proceeded to a

jury

trial. He was found guilty

on

all six counts.

Prior to sentencing, Dr. Harter moved to represent himself. After an appropriate hearing, that

request was granted. Dr. Harter then filed numerous post-trial motions, where he challenged the

Court s authority, previous orders, and sought a

new

trial and acquittal. I presided over the

sentencing, where Dr. Harter received imprisonment for a term of

12

months on each of Counts

1 2

and 3 to run consecutively and ·also to a term

of 12

n10nths on each

of

Counts 4, 5, and 6, to

run concurrently to Counts

1 2

and 3 for a total term of36 months. His appeal to

Chief

Judge

Conway was denied.

Counsel for United States:


Samuel D. Armstrong (retired AUSA)

Mark

Schleben

Law

Office

of

Mark Schleben, PA

1423 S Ft. Harrison Avenue

Clearwater, Florida 33756

727-443-3600

3 ick Ranize Rita Ranize

v

Town ofLady Lake Florida 5:11-cv-646 (M.D. Fla.) (Consent

filed and assigned to me August 2014. Jury trial November 3-5,2014.).

Mr.

and Mrs. Ranize filed two intertwined claims in this civil rights action brought under 42

U.S.C. § 1983 against the Town of Lady Lake: Mr. Ranize claimed that the Town infringed his

First Amendment rights insofar as it terminated his wife from her job as a police dispatcher, and

Mrs. Ranize claimed that the Town unconstitutionally terminated her (in violation her First

Amendment rigllts to free association) based

on

her marital relationship with Mr. Ranize.

Following a three-day trial, the jury determined that the Town unconstitutionally terminated Mrs.

Ranize and awarded her damages, and found in favor of Mr. Ranize as well, but awarded him no

damages.

Prior to consent, I handled preliminary scheduling issues and, on referral from Judge Corrigan, I

conducted a settlement conference. After Judge Corrigan denied summary judgment, the parties

consented to

my

jurisdiction and I handled the pretrial matters, the trial (including voir dire and

jury instructions), and the Plaintiffs post-trial motion for attorney s fees, which included parsing

out an award in light

of

Mrs. Ranize s intertwined, though separate, claim from Mr. Ranize s

claim yvhere the

jury

awarded him no damages.



G.

Ware Cornell Jr.

Mark E. Levitt

Cornell Associates, PA Allen, Norton Blue, PA, Suite 100

2645 Executive Park Drive

1477 W Fairbanks Avenue

Weston, Florida 33331 Winter Park, Florida 32789

954-618-1041

407-571-2152

16


23/44

4 Leila Tarantino v Citrus County Andra Canfield Individually 5: 12-cv-434 (M.D. Fla.)

(Consent filed and assigned to

me

September 2014. Jury trial November 17-19,2014.).

In

this civil rights case, which received some local media attention, Ms. Tarantino alleged that

she was unnecessarily aIld degradingly strip searched in public view on the side of a road by

Officer Canfield. She sued several Officers, including Officer Canfield, and the County for

Fourth Amendment violations. I issued a report for Judge Corrigan

on

the initial complaint, and

recommended that it be dismissed because the Plaintiff failed to adequately plead her individual

capacity claim against the Sheriff (who she had initially named) and her municipal liability claim

against the County.

I later issued another report for Judge Corrigan on claims in the amended

complaint, and recommended that only the individual capacity claims against the Officers

proceed. Subsequently, all but Officer Canfield's motions for summary judgment were granted

by the district judge.

After summary judgnlent the case proceeded to a jury trial against Officer Canfield, on consent

to my jurisdiction. I then handled the pretrial matters and the trial (including voir dire and

jury

instructions). The

jury

returned a verdict in favor

of

Officer Canfield.

Counsel for Plaintiff: Counsel for Defendant:

Matthew

R

Kachergus Bruce R. Bogan

Sheppard, White Kachergus, PA Hilyard, Bogan Palmer, PA

215 Washington Street 105 E Robinson Street, Suite 201

Jacksonville, Florida 32202 P.O. Box 4973

904-356-9661

Orlando, Florida 32802

407-425-4251

Michael Dustin Sechrest

Fisher, Butts, Sechrest, Warner

Palmer,

P

5200 SW 91st Terrace, Suite 101


352-373-5922

Assistant United States Attorney: For the following cases I

was

sole counsel, representing the

United States.

5 Charlene Shaffer as the p rent

nd

natural guardian ofa minor

nd

individual et all v

United States 3:07-cv-111 0 (M.D. Fla.) (District. Judge Harvey E. Schlesinger. Settlement

reached January 2010.).

In

this case, which was one ofmy first medical malpractice defense cases, Ms. Shaffer, on behalf

of herself and her minor son, and Demar Clarke, the father of the minor son, brought suit against

the United States under the Federal Tort Claims Act related to the medical care Ms. Shaffer and

the

minor child received at the Naval Air Station

in

Jacksonville, Florida. Ms. Shaffer

complained that her son suffered a brachial plexus injury during his delivery, with resulting

neurological damage, as a result of

the negligent care provided

by

the Navy hospi tal's nurses nd

doctors.

17


24/44

Between May 2008, when I appeared as sole counsel in the case, and August 2009, when a

settlement was reached, this case was extensively litigated. I interviewed numerous doctors and

nllrses, deposed Ms. Shaffer, defended depositions o the Navy nurses and doctors, and retained,

consulted, and defended the depositions

o

numerous expert witnesses, including an obstetrician

and a pediatric neurologist from John s Hopkins, and a neonatologist from the Children s

Hospital o Philadelphia. After an unsuccessful settlement conference with an excellent

mediator, Plaintiffs counsel and I were able to reach a settlement that was approved by the

United States Attorney.

Counsel for Plaintiffs:

Gary M Cohen

Grossman Roth, PA

925 S Federal Hwy, Suite 350

Boca Raton, Florida 33432

561-367-8666

6

Susan Gallagher individually and as p rent nd guardian ofa minor

v

United States 5:08-

cv-494 (M.D. Fla.) and related case

Nilsa Gallagher v United States

5:08-cv-495 (M.D. Fla.)

(District Judge Wm. Terrell Hodges. Settlement reached April 2010.).

These related motor vehicle accident cases were brought against the United States under the

Federal Tort Claims act for injuries suffered by Susan Gallagher, her minor daughter, and Nilsa

Gallagher when their vehicle was struck by a vehicle driven by a United States Postal Service

mail carrier. Each Plaintiff suffered injuries, but Susan Gallagher sustained the most significant

injuries: bilateral crush injuries to her ankles and feet, and a fractured femur. Although the case

was initiated by a different firm, it was litigated by Spohrer Dodd, PL, which specializes in

catastrophic personal injury cases. Despite multiple surgeries, Susan Gallagher, a mother and

wife, claimed her injuries were debilitating and permanent.

To

defend this action I first retained a mechanical engineer, accident reconstructionist to evaluate

the

crash. Then I immediately retained an orthopeadic surgeon to evaluate each Plaintiff and the

individual medical care they received as a result

o

the collision.

n

addition, as to Susan

Gallagher, I retained a psychiatrist from the University o Florida, along with a life care planner

and

an economist. I engaged in extensive discovery, deposed the Plaintiffs, and reviewed scores

of medical records. Given Susan Gallagher s injuries, the combined value o the case exceeded

the authority

o

the United States Attorney. As a result, to reach a favorable settlement, I not only

needed U.S. Attorney approval, but agency approval and approval from the United States

Department

o

Justice, which I ultimately obtained. This process required a detailed and

supported analysis

o

the proposed settlement. At mediation, we reached an agreement as

to

the

minor and Nilsa Gallagher. Robert Spohrer, Matthew Spohrer, and I then successfully negotiated

Susan Gallagher s claims directly over the next few days.

Counsel for Plaintiffs:

Co-counsel

o

record for Plaintiffs

Robert F. Spohrer

Richard Mellman

Matthew Spohrer

Steven A. Bagen Associates


25/44

Spomer Dodd, PL

6241 W 23rd Street, Suite 200

701

W Adams Street, Suite 2



352-376-0006

904-309-6500

7

United States

v

Ruperto Arguello-Bedolla Jose Becerra-Becerra

5:09-cr-52 (M.D. Fla.)

(District Judge John Antoon

II

Jury trial 'as to Becerra-Becerra February 22-23,2010.) (During

this case I served as sole counsel, except at trial I served as lead counsel, as

my

supervisor set

second-chair.). Affirmed: United States v Becerra-Becerra 437 Fed. Appx. 827,2011 WL

3558190 (11th Cir. August 15,2011).

A

grand jury returned a two count indictment against these two Defendants for conspiracy to

possess with intent to distribute 5 kilograms or more

of

cocaine and possession with intent to

distribute 5 kilo'grams or more of cocaine. I presented this case, which was my first criminal jury

trial, to the grand jury and litigated it through trial and sentencing. While Arguello-Bedolla

entered a guilty plea, Becerra-Becerra, who had initially fled from police and evaded arrest at the

time

of

the traffic stop, moved to suppress the cocaine and argued the stop itsel f was unlawful.

I

argued the motion before the district judge and prevailed. The Eleventll Circuit agreed that the

stop, which was made because the Defendant was travelling too close to the vehicle in front of

him, was lawful.

Becerra-Becerra was tried before a jury and convicted on both counts. Before returning the

verdict, however, the jury asked whether the defendant needed to have knowledge that the drug

was a specific drug (i.e., cocaine) or simply that it was a controlled substance. I argued to the

court, and the district judge agreed and so instructed the jury, that he only needed to have

knowledge that it was a controlled substance. This issue, which is still litigated in courts, was

also affirmed on appeal by the Eleventh Circuit. Becerra-Becerra was sentenced to a term of

imprisonment

of

133 months, which included an upward adjustment as a result

of

his flight.

Counsel for Becerra-Becerra:

Counsel for Arguello-Bedolla

David Gerhardt Mengers Rick Carey

Law Office

of

David Mengers

Assistant Federal Public Defender

500 NE 8th Avenue

201 SW

2nd Street, Suite 102

Ocala, FL 34470


352-622-5514 352-351-9157

8 United States

v

Robert Simmons 5:10-cr-24 (M.D. Fla.) (District Judge John Antoon

II

Guilty plea on the morning

of

trial March 7,2011.).

A

grand jury returned a two count indictment against Mr. Simmons, who was known to law

enforcement on the Ocala National Forest for his methamphetamine production, after he was

discovered cooking methamphetamine in an outdoor meth-Iab he built on the Forest. This case

was significant because he was sought'by law enforcement for his methamphetamine production

and his lab was a significant hazard to the community, as hiking trails that are used by members

of the public where in the area ofhis cook.

I

presented this case to the grand jury, defended his

challenge to his competency to stand trial before the district judge, and litigated the case through

19


26/44

his last-minute guilty plea on the morning

of

his scheduled trial. In fact, Mr. Simmons plead

straight up to the charges just minutes after the venire was seated and jury selection was about to

begin. He received a

10

year mandatory n1inimum in light

of

his criminal history and the

quantity

of

methamphetamine he had cooked the day he was arrested.


Michael William Nielsen

Nielsen Law Firm

720

W

State Road 434

Winter Springs, Florida 32708

407-327-5865

9 United States v Eleuterio Hernandez-Echeverria Leonel Hernandez-Echeverria Marvin

Andres Hernandez Claudio Salas Priscilla Richardson

5:11-cr-34 (M.D. Fla.) (District

Judge Wm. Terrell Hodges. Jury trial as to Ms. Richardson March 27-29, 2012.). Affirmed:

United States v Richardson

512 Fed. Appx 1006,2013 WL 1136561 (11th Cir. March 19,

2013).

With the exception

of

Richardson, all

of

the Defendants were stopped shortly after agreeing to

sell cocaine to a known drug dealer in the Ocala area (i.e., Monte Washington, who was recently

prosecuted and convicted in a separate drug conspiracy case:

5:

13cr28). Eleuterio Hemandez

Echeverria fled from law enforcement, but was arrested after a high speed chase. In addition to

cocaine, firearms were recovered from the vehicles. And, at the time

of

the initial contact with

law enforcement, DEA recognized Defendant Claudio Salas as a convicted felon who had

escaped from the custody of the

u S

Bureau

of

Prisons.

It was determined that Richardson had transported 5 kilograms or more

of

cocaine from Texas to

Ocala for the Hernandez-Echeverria brothers, who obtained the help

of

Salas to sell it. Her

vehicle contained a secret compartment, which was used to move the cocaine. The Defendants

were debriefed, and all but Richardson agreed to plead guilty. The brothers received lengthy

terms of

imprisonment, and Claudio Salas received a significant period

of

262 months to be

served consecutively to his undischarged term of imprisonment from his prior federal conviction.

Ms

Richardson proceeded to trial, where I was sole counsel. The jury returned a guilty verdict

and

she ,appealed. The Eleventh Circuit affirmed, and denied her contention that she was an

unwilling accessory, finding that the evidence presented

of

her involvement was sufficient for

a

reasonable jury to conclude that her role was significantly greater than that.

Counsel for Eleuterio Hemandez

Counsel for Caudio Salas:

Echeverria:

Rick Carey

Charles R Holloman, Jr. Assistant Federal Public Defender

Charles

R

Holloman, PA

201 SW 2nd Street, Suite 102

7 E Silver Springs Blvd, Suite 200 Ocala, Florida 34474


352-351-9157

352-867-0766


27/44

Counsel for Leonel Hernandez

Counsel for Priscilla Richardson:

Echeverria:

David Gerhardt Mengers

Christine Nan Bird

Law Office ofDavid Mengers

Alavi, Bird Pozzuto, PA

500

NE

8th Avenue

108 N Magnolia Avenue, Suite 600

Ocala, FL 34470

Ocala, Florida 34475 352-622-5514

352-732-9191

Counsel for Marvin Andres Hernandez:

J. Jeffrey Dowdy

Law Offices

of Jeffrey Dowdy

520 W Lake Mary Blvd, Suite 103

Sanford, Florida 32773

407-878-7103

Assistant General ounsel

10

Gloria Ramos as personal representative

of

the estate

of

Rafael Souffront

v

City

of

jacksonville et al.

3:07-cv-37 (M.D. Fla.) (District Judge Howell W. Melton. Settlement

reached February 27, 2008.).

The Plaintiff, Glorida Ramos, as the personal representative

of

the estate

of

her son, Rafael

Souffront, asserted claims under the Fourteenth Amendment and Florida s Wrongful Death Act.

against seven individual Jacksonville

Sheriffs

Officers and the City itself for the death ofher

son, which occurred while he was detained at the Jacksonville

Sheriffs

Office s Pretrial

Detention Facility. This case was significant insofar as I was the sole counsel and it was brought

against several individual officers in their personal capacities for the death

of

a pretrial detainee

in

the custody of the

Sheriffs

Office. Through an effective motions practice I was able to

negotiate a settlement in this case.

My

initial motions on

behalf

of

the City and the individual

Defendants, whom I personally represented, challenged the sufficiency

of

the

Plaintiff

s

pleading, to which she filed an amended complaint. Among other things, I sought dismissal

of

her Fourth and Fifth Amendment claims, as well as the dismissal

of

the State wrongful death

claim as insufficiently plead. The court agreed.

Plaintiff then filed a third complaint, and I promptly moved to dismiss several

of her

claims

contained therein. In a motion to the court Plaintiffconceded the merit

of

the motion and filed a

fourth complaint, to which I filed an answer on behalfof the City and individual Defendants.

Ultimately, through direct communications with

Plaintiffs

counsel, we reached a settlement as

to the entire case.


Ronald

J Davis

II

La Rae H Hendrix, P.A.

165 Wells Road, Suite 104

Orange Park, Florida 32073

904-399-1644

2


28/44

10

Legal Activities. Describe as many as ten

of

the most significant legal activities you have

pursued, including a significant litigation which did not progress to trial or legal matters that did

not involve litigation. Describe the nature of your participation in this action, omitting any

information protected by the attorney-client privilege, unless the privilege has been waived.

United States Magistrate Judge

Cases: While I am the assigned magistrate judge on hundreds of cases, here are two pending

matters that are significant and in the pretrial stages

of

litigation where I have been involved in

addressing a substantive and complex issue:

1 Kellean K Truesdell v Clayton Thomas aformer Sheriff's Deputy) and Marion County

SheriffChris Blair in his individual and official capacities, 5:13-cv-552 (M.D. Fla.) (District

Judge Wm. Terrell Hodges).

As

stated in my report, where I reconlffiended the denial

of

laintiffs motion for class

certification: "Plaintiffbrings this putative class action against former Marion County Sheriffs

Office deputy Clayton Thomas; the Sheriff, Chris Blair, individually; and the

Sheriffs

Office

itself (through Sheriff Blair in his official capacity) under the Driver's Privacy Protection Act

of

1994,18 U.S.C. §§ 2721, et seq. (DPPA), 42 U.S.C. § 1983 for violations of her federal privacy

rights

as

created by DPPA, and state law, because, as she alleges, Thomas accessed her personal

information without any lawful purpose, Sheriff Blair allegedly played some direct role in this

violation, and the Sheriffs Office allowed it to happen. Plaintiff alleges that this conduct affects

over 42,000 other individuals and seeks to form a class." (Document Entry 76.)

The case is significant and legally interesting insofar as it involves the DPPA, alleged

constitutional violations, and an effort to certify a class of over forty thousand members, with a

value between $10 million and over $100 million. The case has also involved several discovery

disputes that I have handled. Judge Hodges recently adopted my recommendation to deny the

class and it is now on interlocutory appeal.

2

The American Humanist Association, Inc. et ale

v

City Ocala, Mayor Quinn, Police Chief

Graham,

5:14-cv-651 (M.D. Fla.) (District Judge Timothy

J

Corrigan).

In this First Amendment case, the American Humanist Association and three individual Plaintiffs

sued

the City of Ocala, its Mayor, and its Chiefof Police for their alleged involvement in a

community prayer vigil. The case is in its very early stages, but is a significant matter insofar as

it

involves the First Amendment and the City's leading public officials. Recently, upon referral

from

the district judge, I recommend that the Defendants' motion to dismiss be "denied as to the

individual Plaintiffs' claims for nominal damages against the City, as well

as

the Mayor and

Chief in their individual capacitiesOl b ut granted in all other respects." This case has already

received some local media attention.

3 Mediation:

In

addition to my general judicial tasks, I regularly serve as a mediator in cases

assigned to me or assigned to other judges from different divisions. Typically, I handle cases on

y Ocala docket and assist the Orlando division by serving as an available magistrate judge to

conduct settlement conferences where the parties request one with the court. Recently, though, I

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served as a mediator in a case before the Eleventh Circuit, where the parties requested

my

assistance, and in the Tampa division case discussed below, where the parties agreed to me.

Louise Goldsberry

&

Craig Dorris

v

Matt Wiggins et al. 8:14-cv-1876 (M.D. Fla.) (District

Judge Virginia M. Hernandez Covington. Settlement reached January 2015.).

The Plaintiffs in this case sued several Deputy United States Marshals and Officers

of

the

Sarasota Police Departnlent in their individual capacities for alleged violations

of

their Fourth

Amendment rights. Specifically, the Plaintiffs alleged an unlawful and warrantless entry of

their residence, and the unlawful seizure

of

their individual persons at gunpoint. The

mediation involved each individual Plaintiffs claims and experience, the interests

of

the United

States, as well as the Sarasota Police Department. After a day

of

in person conferencing and a

few days

of

telephone discussions, all parties reached an agreement. While not every case is

handled exactly the same way, most mediations require patience, a general understanding

of

the

law and some creativity. This case was no exception. And, it was a significant matter given the

nature

of

the allegations and some

of

the media attention it received.

4 Presentations: My service as a federal judge not only involves litigation and mediation, but

also active participation with

my

colleagues on the bench and involvement with the legal

community, as an educator, liaison, and ambassador for the Court. To fulfill this role I have

presented to and with my colleagues on the state and federal bench on numerous occasions over

the last few years. In addition to sitting on panels to discuss career and clerkship opportunities to

law students, serving as a judge for UF s moot court competition, and discussing legal issues and

federal practice at local Federal Bar Association events (both the North Central Florida Chapter

and the Jacksonville Chapter) and specialty bar association events, shortly after becoming a

judge I participated as a faculty member for technology training to new magistrate judges, and,

more recently, I participated as a faculty member at the Department of Justice's National

Advocacy Center for civil trial practice.

The new judge training involved teaching recently appointed magistrate judges

how

to

effectively use court and courtroom technology to manage their cases and,

n

particular, how to

incorporate the iPad into their daily practice. The DOJ training at the NAC involved serving for

three days as a judge for civil attorneys with the Department

of

Justice to conduct a

jury

trial

(using students from a local school) in a tort case. The Federal Bar association events involved

speaking on two leadership panels with state and federal judges to the local community about

topics including women, diversity, and a work-life balance in the law, and speaking with fellow

TIlagistrate judges at the Jacksonville Federal Bar Association's federal practice seminar about

mediation and later about discovery practices. I also spoke this year on a panel alongside two

state judges from Jacksonville to the Florida National Employment Lawyers Association and

participated in the Federal Judicial Roundtable at the Florida

Bar s

Annual Convention. All

of

these events are wonderful opportunities to meet and engage colleagues on the bench and the

lawyers who practice before us.

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5

Leroy Smith et

ale v

United States et aI. 5:08-cv-84 (Northern District

o

Fla.) (District Judge

Richard Smoak. Dismissed on my motion September 2009.).

Shortly after I joined the United States Attorney s Office for the Middle District o Florida, I was

asked to serve as a Special Assistant United States Attorney for the Northern District

o

Florida

so that I could handle this case. This case was being monitored, coincidentally, by the director

o

the torts branch, who was my previous supervisor when I served at the Department o Justice.

This case was resolved on my motion to dismiss, but involved significant time and research. It

was

also monitored by the General Counsel s office for the United States Bureau

o

Prisons.

Twenty-one Plaintiffs, who fell into separate, discrete groups such as current and former federal

employees, current and former federal inmates, public plaintiffs, and a federal whistleblower,

attempted to sue the United States, by naming the United States, U.S. Department o Justice,

U.S. Bureau o Prisons, Federal Prison Industries, Inc., and individual Defendants sued in their

official capacities, for Plaintiffs alleged exposure to toxic substances related to a recycling

program at the Federal Correctional Institution in Marianna, Florida. I n10ved to dismiss the

complaint on behalfo the government defendants because Plaintiffs failed to identify a basis for

the

court s jurisdiction and could not overcome the government s entitlement to sovereign

immunity. Indeed, each Plaintiff failed to pursue the appropriate, and in some cases exclusive,

relief: the current and former employees were required to seek rel ief under the Federal

Employees Compensation Act, which is an exclusive remedy; the former inmates were required

to seek relief under the Inmate Accident Compensation Act, which was their exclusive remedy;

the

public Plaintiffs were required to first fully exhaust the req uirements o the Federal Tort

Claims Act, and the lead Plaintiff, Leroy Smith, who was a federal whistleblower, was required

to

pursue his claims under the Whistleblowers Protection Act. The Court agreed that it lacked

jurisdiction and dismissed the case.

6 State Florida ex rei. Freda Cobb et

al v

United States et al. 5: 10-cv-118 (Northern

District

o

Fla.) (District Judge Richard Smoak. Case dismissed with prejudice on my motion

August 2010: Florida ex reI Cobb

v

US. Dept. Justice 2010 WL 3211992 (August 12

2010)). Affirmed:

Florida ex rei. Cobb v

U S

Dept. Justice

440 Fed. Appx. 860,2011 WL

4360916 (11th Cir. September 20,2011).

Undeterred by the dismissal in

Smith

and instead

o

filing an amended complaint in that case,

Plaintiff Cobb, joined by Padgett, filed this action in the name o the State o Florida in State

Court. They brought suit under Florida s Public Nuisance Statute to enjoin the recycling program

at the Federal Correctional Institution in Marianna, Florida as a public nuisance. After an AUSA

for

the NDFL removed the action to federal court, I again defended the litigation as a Special

AUSA for the NDFL. The case was again monitored closely by the Department o Justice and

the

General Counsel s office for the BOP. Unlike the prior litigation where I successfully stayed

discovery, in this case discovery commenced and I spent a significant period o time preparing

responses to Plaintiff s requests, while also preparing a comprehensive motion to dismiss on

Plaintiffs clever attempt to seek reliefthrough the public ntlisance statute.

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32/44

Trial

Attorney

9

l Kidd

v

United States et al. 1:05-cv-93 (District

of

Idaho) (District Judge Edward J.

Lodge).

The first case I was assigned in my career, where I represented a client, involved Plaintiff

Abdullah al-Kidd's civil rights action against, among others, the United States, former Attorney

General John Ashcroft, the Wardell

of

a federal prison, and two individual FBI agents. My co

counsel (Forrest Christian, who was the senior attorney on the case), and I represented the United

States and the individual Defendants, including Ashcroft. Mr. Christian and I extensively

researched the issues in this case and we prepared a motion to dismiss the United States (which I

primarily drafted (DE. 49/50)) and a motion to dismiss the individual Defendants (which

Mr.

Christian primarily drafted). All

of

our arguments and briefs were reviewed and discussed with

our Director and other officials in the Department.

The Plaintiff alleged that he was unlawfully arrested and detained on a material-witness warrant

post-September

11.

TIle qualified immunity arguments presented on behalfofAshcroft in the

motion to dismiss were litigated before the Supreme Court, which summarized the case as

follows:

The complaint alleges that, in the aftermath

of

the September 11th terrorist attacks, then

Attorney General John Ashcroft authorized federal prosecutors and law enforcement officials

to use the nlaterial-witness statute to detain individuals with suspected ties to terrorist

organizations. It is alleged that federal officials had no intention

of

calling most

of

these

individuals as witnesses, and that they were detained, at Ashcroft's direction, because federal

officials suspected them

of

supporting terrorism but lacked sufficient evidence to charge

them with a crime.

Ashcroft

v

al-Kidd

131 S.

Ct. 2074, 2079 (2011). Although the District Court and the Ninth

Circuit denied Aschroft qualified immunity, in a unanimous opinion the Supreme Court held

"[h]e deserves qualified immunity", finding that

an

objectively reasonable arrest and detention

of

a material witness pursuant to a validly obtained warrant cannot be challenged as

unconstitutional on the basis

of

allegations that the arresting authority had an improper motive."

ld

at 2085.

10 Representation Requests: Federal employees who are sued in their individual capacities do

not automatically receive government counsel.

If

an employee desires government representation

(e.g., an Assistant United States Attorney or a Trial Attorney from DOJ), as opposed to hiring his

or

her own private counsel, then the employee must seek representation approval through the

Department

of

Justice. Typically an enlployee seeking such counsel would obtain the support

of

his or her agency and submit the request to the

DOJ's

Civil Division, Constitutional Torts

Section, where served as a trial attorney.

One

of

the first and most significant representation requests worked on involved numerous

BOP correctional officers who were sued in their individual capacities for allegedly violating

the

constitutional rights

of

a pretrial detaillee while he was housed at the U.S. Bureau

of

Prison's

Metropolitan Detention Center in Brooklyn, New York shortly after the terrorism attacks

of

September

11.

The Plaintiff, who was Muslim, alleged that the correctional officers physically

abused him during his incarceration. I reviewed the representation requests for the correctional

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officersand,alongwithmysupervisorintheConstitutionalTortsSection,made

recommendationstotheGeneralCounselfortheU.S.Bureau

of

PrisonsandthePrincipal

DeputyUnitedStatesAttorneyGeneralastowhethertheyshouldbeaffordedgovernment

counsel,thegovernnlentshouldpayfortheirprivatecounsel,ortheyshouldreceiveno

governmentlegalassistance.Thoughmyroleonlyrelatedtotherepresentationrequestsforthese

officers,thecaseitselfwassignificantinthatitalsoinvolvedallegationsagainsthighranking

officials,suchastheAttorneyGeneralandDirectorof

theFBI,andthoseclaimswerelitigated,

in part,beforetheSupremeCourt.

See Ashcroft v Iqbal

556U.S.662(2009).

11 Public Office

Haveyoueverheldpublicoffice?

If

so,givedetails,includingtheoffice

involved,whetherelectedorappointed,andthelength

of

yourservice,includingdates.

UnitedStatesMagistrateJudge,MiddleDistrict

of

Florida(July2012topresent).

Iamcurrentlyserving,asIhaveforthepast

years,asaUnitedStatesMagistrateJudgefor

the

UnitedStatesDistrictCourtfortheMiddleDistrict

of

Florida.IwasappointedonJuly2,

2012.

PriortomyappoilltmentIwasinterviewedbytheMeritSelectionPanelmadeup

of

lawyers(andChairedbyattorneyMayanneDowns)andlaypersonsfromthecommunity.My

namewasthensubmittedbythePaneltothedistrictjudgesfortheMiddleDistrict of Floridafor

consideration.Iwastheninterviewedbythedistrictjudges,includingseniorjudges,andselected

for

theposition.Iwillserveaneightyearterm,afterwhichIcanseekreappointment.

12 Candidate or Applicant

Haveyoueverbeenanunsuccessful(a)candidateforelective

judicialorotherpublicoffice,or(b)applicantforajudicialposition? If so,givedetails,

includingdates.

No.

Ihaveneverbeenanunsuccessfulcandidateforelectivejudicialorotherpublicoffice,andI

haveneverbeenanunsuccessfulapplicantforajudicialposition.

13 Other Occupations

Haveyoueverbeenengagedinanyoccupation,businessorprofession

otherthanthepractice

of

laworholdingjudicialorotherpublicoffice?

If

so,givedetails,

includingdates.

No.

Ihavenotengagedinanyoccupationorbusinessprofessionotherthanthepractice

of law

or

holdingajudicialoffice.

14 Business Connections

Areyounowanofficerordirectororotherwiseengagedinthe

managenlent

of lY

businessenterprise?

(a)

If so

givedetails"includingthename

of

theenterprise,thenature

of

thebusiness,the

titleorotherdescriptionof yourposition,thenature

of

yourdutiesandthetermof

yourservice.

(b) Isityouintentiontoresignsuchpositionandwithdrawfromanyparticipationinthe

management

of

anysuchenterprise

if

youarenonlinatedandconfirmed?

If

not,give

reasons.

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No

I am not an officer or director or otherwise engaged in the management of any business

enterprise.

15 Allegations. Have you ever been arrested, charged or detained by federal, state or other law

enforcement authorities for a violation of any federal law or regulation, state law or regulation,

county or municipal law, regulation or ordinance?

If

so, give details. Do not include traffic

violations for which a fine of $100 or less was imposed.

When I was

17

years old, and beginning my senior year

of

high school, I

philip r. lammens application for us district judge jul-23-2015 (redacted)

Documents