Does a college prank really deserve a federal prosecution, conviction, and probation?

So a college freshman snuck into Mar-a-Lago as a joke.

In the old days, he would have been arrested and scared into never doing something like that again.

But not today... now, the feds decided to prosecute him and a judge placed him on probation for a year.

Seems like over-kill.

From the Palm Beach Post:

An apologetic Mark Lindblom on Tuesday told a federal magistrate that he had no evil intentions when he decided to try and enter the club on the day after Thanksgiving while President Donald Trump and his family were visiting. The Washington, D.C. teenager said he just wanted to see if he could do it.

And, according to accounts from his attorney and a federal prosecutor, it was pretty easy.

Visiting his grandparents, who are members of the nearby Palm Beach Bath & Tennis Club, Lindblom simply walked down the beach the two clubs share.

Once at a tunnel under State Road A1A that gives Mar-a-Lago members exclusive access to the beach, Lindblom stood in line with club members who were waiting to pass through a metal detector manned by Secret Service agents, said his attorney Marcos Beaton.

“Mr. Lindblom was wanded by Secret Service agents and he walked on through,” Beaton said.
***
Saying Lindblom made “an exceptionally foolish decision,” he said agents meticulously combed through Lindblom’s background after arresting him wandering on the grass near the club pool. They only thing Lindblom took was pictures on his cell phone, he said.

“We have no reason to believe he had a political, criminal or terroristic purpose,” McMillan said. “It was a foolish decision he did on a lark.”

***
He pleaded guilty to a charge of entering or remaining in a restricted building or grounds - one of two charges Zhang faces. While Matthewman could have sent Lindblom to jail for six months, he opted instead to place him on probation for a year.

Both McMillan and Fridella said they supported the lenient sentence.

Lenient, huh?

Alcee Hastings' trial

The Palm Beach Post just ran a 3-part series about Alcee Hastings.  Part 2 covered his federal trial and acquittal in which he was accused of taking bribes as a federal judge.  Despite his acquittal, he was later impeached (and then became a successful and longtime Representative).  I didn't realize that after the acquittal, two of Hastings' colleagues (William Terrell Hodges and Anthony Alaimo) secretly referred him for investigation by the 11th Circuit, which ended up getting him impeached.

The case against Hastings energized his black supporters, who saw it as yet another example of the white power structure attacking a black man who had risen too high.

Hastings girded himself for the fight, hiring a team of lawyers, including one named Patricia G. Williams, who would see him through this and other difficulties.

The judge ripped the government, saying he was being targeted because of his race and because of his opposition to the Reagan administration.

Three decades later, Hastings maintains that his criticism of the administration, his rulings and his unwillingness to shed friends and associates once he became a judge made him a target.

“I should have been more monastic, but that’s not my style,” he said.

Even before Rico’s indictment, there were holes in the government’s case against Hastings. Big ones.

Investigators could not prove that any of the first $25,000 given to Borders made its way to Hastings. They had not waited to see if Borders would take the remaining $125,000 and give some to Hastings.

That allowed Hastings to argue that Borders was carrying out the scheme on his own, trading on his associate’s position as a judge.

With Borders refusing to testify, Hastings disputed the notion that the two were good friends, saying Borders was merely a political ally with a funny way of speaking, a reference to the taped conversation that played such a big role in the case.

After a two-week trial in federal court in Miami, a jury acquitted Hastings of the charges against him.

Hastings and his supporters were euphoric.

“His victory has more or less opened the door of hope for so many of us who, through innumerable injustice, had come to feel that justice sits atop a mountain out of reach of the poor, the oppressed and the blacks of this nation,” Athalie Range, a black funeral home owner, told The Miami News after the verdict.

In a series of lectures he had published as “The Battles of Hastings” in 1996, one of Hastings’ attorneys, Terence Anderson, said the government knew Borders made false claims about his influence over judges.

“Before the investigation had been authorized, the FBI’s files contained information indicating that Borders had falsely held himself out as having the power to fix cases before other judges, judges whose integrity the government had never questioned.”

Anderson did not elaborate on what that information was, and efforts to reach him were unsuccessful.

For Hastings, the not guilty verdict was the only one a just system could deliver.

“Indeed, they found me not guilty of crimes I never committed,” Hastings would say. “I have not received a bribe. I have not obstructed justice. And I have not betrayed the high office I hold under Article III of the United States Constitution. I am not guilty.”

Hastings had taken the feds’ best shot — and won.

A few weeks after the verdict, 500 people showed up for a victory celebration and fundraiser.

Hastings was in the clear. Or so it seemed.

Judicial colleagues file secret complaint

William Terrell Hodges and Anthony Alaimo weren’t convinced.

Hastings had won his case and was back on the federal bench.

But Hodges and Alaimo, two of Hastings’ fellow judges on the 11th Judicial Circuit, wondered, if Borders were guilty, how could Hastings be innocent?

Under a new set of rules, the two judges, both white, took the extraordinary step of filing a secret complaint requesting an investigation into whether Hastings had lied and falsified evidence during his criminal trial.

The judges’ complaints sparked a three-year investigation led by John Doar, a legendary figure who had worked in the Civil Rights Division of the U.S. Justice Department for seven tumultuous years under Presidents John F. Kennedy and Lyndon Johnson.

An 11th Circuit panel, reviewing Doar’s findings, concluded that Hastings committed perjury, tampered with evidence and conspired to gain financially by accepting bribes.

Miami lawyers Scott Srebnick and Jose Quinon to represent Michael Avenatti...

...in one of his three federal criminal cases, the Nike indictment.  He’s lucky to have them.  From the client himself:

“Timing is everything.”

That’s Judge Rosenbaum in this case involving Club Madonna, a strip club on Miami Beach.  More:

People often say that timing is everything. Hitting a home run? Timing.1 Comedy? Timing.2 Winemaking? Timing.3 Relationships? Timing.4 Politics? Timing.5
And of course, timing is also important when it comes to Article III justiciability. File before the facts underpinning the claim have been sufficiently developed, and a court must dismiss the claim because it is not ripe for the court’s review. But wait until the claim has been resolved and the court can offer no further relief, and a court must dismiss the claim because it is moot. Yet if a well-pleaded claim falls in the sweet spot between ripeness and mootness and is otherwise justiciable, it states a “case or controversy” that the court must entertain.
Here, Appellant Club Madonna, Inc. (the “Club”), a fully-nude strip club in the City of Miami Beach (the “City”), filed several claims against the City, challenging administrative action it had taken against the Club, the laws authorizing that action, and ordinances the City later enacted that regulate the fully nude strip- club business. The district court dismissed all sixteen of the Club’s claims, six because they did not state a claim and ten because they were not yet ripe for the court’s review.
The Club appealed the district court’s dismissal as it pertains to all but Counts I, II, and part of Count VI. We agree that Counts III through VI failed to state claims. We also agree that one of the remaining claims was not ripe. And we affirm the district court’s dismissal of one more of those claims because the Club lacks standing to pursue it. But we conclude that the eight remaining appealed claims were ripe for the district court’s review and therefore reverse and remand to the district court for further proceedings.

All those footnotes at the beginning of the opinion make for fun reading:

1 Babe Ruth said that a great hitter didn’t “swing any harder” or “with any longer arc than the poorer hitters” but had “perfect timing sense.” George Herman Ruth, Babe Ruth’s Own Book of Baseball 178 (University of Nebraska Press, 1992) (1928); see also Nate Scott, “The 50 Greatest Yogi Berra Quotes,” USA Today Sept. 23, 2015, available at https://ftw.usatoday.com/2015/09/the-50-greatest-yogi-berra-quotes (last visited May 24, 2019).
2 According to Bob Hope, timing is “the essence of life and definitely of comedy.” William Robert Faith, Bob Hope: A Life in Comedy (Da Capo Press, Inc. 2009). Asked to comment further, he reportedly paused and said, “We don’t have time for that.” Dena Kleiman, “Bob Hope Gives a Lesson in Comedy,” New York Times, April 30, 1986, available at https://nyti.ms/2HLa4Mi.
3 Timing’s importance in winemaking was central to the Paul Masson advertising campaign from the late 1970s, which featured Orson Welles informing the viewer that the company would “sell no wine before its time.” See Orson Welles for Paul Masson Wine (April 2, 1979), YouTube (May 14, 2009), https://youtu.be/oSs6DcA6dFI, (last visited May 24, 2019).
4 Just ask Mila Kunis and Ashton Kutcher. They married in 2015, over a decade and a half after their first kiss—as actors in the pilot episode of That ‘70s Show. Stephanie Petit, “#TBT: Mila Kunis and Ashton Kutcher First Kissed on That 70’s Show,” People (July 21, 2016), https://people.com/tv/mila-kunis-and-ashton-kutcher-recall-first-kiss-on-that-70s-show/ (last visited May 24, 2019).
5 Pierre Trudeau is credited as saying that timing was the “essential ingredient” of politics. See The Wordsworth Dictionary of Quotations 439 (Connie Robertson, ed.,Wordsworth 1997).

Summer court closures

Have a great Memorial Day on Monday.  Courts are closed.

Federal court is also closed on July 5 per this Order from Chief Judge Moore.

While I'm on the Administrative Orders page, I saw these new magistrate judge pairings for the new district judges:

ORDERED that effective May 6, 2019, when Judge Ruiz begins receiving case transfers
from other District Judges, he will be paired with Magistrate Judge Barry S. Seltzer for all Fort
Lauderdale cases; Magistrate Judge Jacqueline Becerra for all Miami cases; and Magistrate Judge
Bruce E. Reinhart for all West Palm Beach cases.

AND

ORDERED that effective April 11, 2019, when Judge Altman begins receiving case transfers from other District Judges, he will be paired with Magistrate Judge Patrick M. Hunt for all Fort Lauderdale and Miami cases; and Magistrate Judge Dave Lee Brannon for all West Palm Beach cases.

“It has taken all of us many years to learn the rules of procedure and you’re going to have to study that and learn that yourself.”

That was Judge Roy Altman telling Yujing Zhang, the accused Chinese spy, that she shouldn't represent herself. Her response:

“If necessary, I might do some study in terms of this,” Zhang acknowledged.

“A trained lawyer would defend you much better than you could represent yourself,” Altman replied. “I strongly urge you not to represent yourself. ... I’ve been a lawyer for a very long time and I think this is a very bad decision.”

The Herald has more here.

One interesting issue that is happening more and more is a reporter reporting on overhearing a conversation between lawyer and client in the court. The Herald reported on such a conversation here calling it an "intense heart-to-heart."

Gorsuch joins "liberal" wing of Supreme Court on Tribal issue

This is the second time he has done so.  The holding:  Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Justice Sotomayor wrote the opinion, which can be accessed here.

Roy Black gives commencement address at the University of Miami School of Law

It was very powerful.  An excerpt:

We lawyers can not change the world

that is the province of politicians

we have a higher calling --

we change the lives of people.

Judaism has a saying:

If you save one life,

it’s as if you’ve saved the world.

today on the cusp of your career

I issue a challenge to each one of you:

WHO among you will rescue the children

being held in steel cages at our southern border --

children our government has classified as collateral damage.

WHO among you will seek DNA from death row inmates.

WHO among you will prosecute or defend

war criminals at The Hague.

WHO among you will to take on

the existential threat to our environment --

to treat the climate crisis as the biggest threat in human history.

WHO will continue the campaign

to ensure every American,

regardless of ability to pay,

has the basic human right to healthcare.

it is not a coincidence that this mission

began with a president who taught constitutional law.

WHO will attend 8am bail hearings for indigent prisoners

WHO will fight for each one of the 68 million refugees,

men, women and children

desperately fleeing

the monsters who make war on them,

whether they be:

the drug gangs of Central America,

Assad bombing and gassing the cities of Syria,

or the brutal warlords on the plains of Africa.

WHO among you will demand they be treated humanely,

and not turn a blind eye to their torture.

WHO will stand up against the bigotry directed at

African Americans, Native Americans, other people of color,

the jews, Muslims, Hindus, Sikhs, immigrants

and every other despised minority under attack today.

WHO among you will seek the closure

of our concentration camp at Guantanamo

and have the audacity to demand fair trials for terrorists.

WHO would step forward to defend

Julian Assange, or Bill Cosby

or the Stoneman Douglas high school assassin

Or would you rather join your peers at Harvard

who are protesting a law professor

daring to represent Harvey Weinstein.

I urge you not to fear the displeasure of the crowd

or the distaste of the trolls.

Our constitution and laws are toothless if they only protect those

who enjoy popular approval.

Kavanaugh v. Gorsuch

An interesting antitrust opinion with a 5-4 split involving Apple pitted the two newest Justices against each other yesterday.  From the New York Times:

The Supreme Court on Monday allowed an enormous antitrust class action against Apple to move forward, saying consumers should be allowed to try to prove that the technology giant had used monopoly power to raise the prices of iPhone apps.

The lawsuit is in its early stages, and it must overcome other legal hurdles. But the case brings the most direct legal challenge in the United States to the clout that Apple has built up through its App Store. And it raises questions about how the company has wielded that power, amid a wave of anti-tech sentiment that has also prompted concerns about the dominance of other tech behemoths such as Facebook and Amazon.

The court’s 5-to-4 vote featured an unusual alignment of justices, with President Trump’s two appointees on opposite sides. Justice Brett M. Kavanaugh, who joined the court in October, wrote the majority opinion, which was also signed by the court’s four more liberal justices. Justice Neil M. Gorsuch, who joined the court in 2017, wrote the dissent.

The class-action lawsuit focuses on the fees that Apple takes on sales in its App Store, which millions of people use every day to download games, messaging apps and other programs. The company charges up to a 30 percent commission to developers who sell their products through its store, bars them from selling their apps elsewhere and plays a role in setting prices. App makers have long complained that the fee and other practices are unfair.

Scotus has more here.

"Kim Kardashian is the hero that criminal justice reform needs"

That's the title of my latest piece in The Hill, which you can read here.  The introduction:

A lot of people talk the talk about criminal justice reform, even though their records on reform are ... shall we say ... not sparkling. There are very few people who walk the criminal justice reform walk. Kim Kardashian is one of those actually working to make change. It shouldn’t be a big surprise that Kardashian has a deep-rooted passion for criminal defense as her dad, Robert, was also a well-known lawyer. 

She’s successfully working with President Trump on commutations and pardons. Kardashian saw a story on Twitter about Alice Marie Johnson and didn’t just retweet it. She did something and made it her mission to help the first-time nonviolent drug offender who was sentenced to life. She met with Johnson and then met with Trump. After 21 years in prison, Johnson was released. Kardashian literally saved her life and was quoted after hearing that Johnson was going to be released: "We cried, maybe, on the phone for, like, three minutes straight. Everyone was just crying." 

She’s funding lawyers who are working on freeing other inmates. There is so much work to be done with our over-incarceration problem because of the old War on Drugs policies, which resulted in thousands of people convicted of low-level drug offenses doing monster prison sentences, including life.  Kardashian is funding lawyers who are working on The Decarceration Collective and other initiatives (like #cut50 with Van Jones), including putting to work the First Step Act, the recent law meant to reform our criminal justice issues. In just the last 90 days, she has helped to free 17 prisoners. It’s truly remarkable work.

“Warning: Unavoidable Acronyms Ahead.”

Ha.  That’s Judge Newsom in this 11th Circuit opinion today:

Flat Creek is a commercial trucking company that transports non-hazardous materials—mainly refrigerated food products. Because it operates in interstate commerce, Flat Creek is subject to Department of Transportation regulations. And because its claim in this case arises against the backdrop of that regulatory framework, we begin with an overview. (Warning: Unavoidable Acronyms Ahead.)

BREAKING -- RAAG SINGHAL BEING VETTED FOR OPEN DISTRICT SLOT

Great news -- Judge Raag Singhal is being vetted for an open district court seat in Ft. Lauderdale.  He currently sits on the Broward state bench (he was appointed by Rick Scott back in 2011 and was re-elected in 2014) and has wide support on both sides of the aisle.  He's a former state prosecutor and private defense lawyer.  Plus, he's a really good guy.  Here's hoping that he gets nominated and confirmed quickly.  After that, there will still be one opening left.  It's unclear whether the JNC will be reconstituted or whether Senators Rubio and Scott will just select someone.

CONGRATULATIONS TO JUDGE SINGHAL!

Judge Ruiz sworn in

There was a really nice informal swearing-in of Judge Ruiz at lunchtime today in Judge Moore's courtroom.  Judge Moreno -- who Judge Ruiz clerked for -- did the honors for a packed courtroom.  Here are some shots:

CONGRATULATIONS TO RUDY RUIZ

Our newest judge for the Southern District of Florida, confirmed 90-8.

Awesome.

Rudy Ruiz will be confirmed shortly

The motion to invoke cloture on Rodolfo Armando Ruiz II was agreed on 89-10.  He will be confirmed by the end of the week.

Judges, get your new set of transfer orders ready.

"Immoral and barbaric"

That was Judge Bob Scola in his recusal order discussing United Health's decision not to cover proton radiation treatment. More:

In early 2017, the Court was diagnosed with prostate cancer. In
determining the best course of treatment, the Court consulted with top medical
experts throughout the country. All the experts opined that if I opted for
radiation treatment, proton radiation was by far the wiser course of action.
Although the Court opted for surgery, rather than radiation, those opinions
still resonant.
Further, a very close friend of the Court was diagnosed with cancer in
2015. He opted to have proton radiation treatment at M.D. Anderson in
Houston. His health care provider, United Healthcare, refused to pay for the
treatment. Fortunately, he had the resources to pay $150,000 for the treatment
and only upon threat of litigation did United Healthcare agree to reimburse
him.
It is undisputed among legitimate medical experts that proton radiation
therapy is not experimental and causes much less collateral damage than
traditional radiation. To deny a patient this treatment, if it is available, is
immoral and barbaric.
The Court’s opinions in this matter prevent it from deciding this case
fairly and impartially.

Thankfully Judge Scola is healthy again. And what an amazing order.