Government asking for life sentence for convicted fraudster (Updated)

Update-- Judge Martinez sentenced him to 40 years. 

Original post:

According to this Herald article:

The former chief of the failed Clubs Resorts and Marinas will learn his sentence in a 9:30 a.m. Monday hearing at the Key West federal courthouse. Maximum combined sentences for the counts carry a potential 200 years behind bars, prosecutors wrote in a filing last week.

A life sentence "would be reasonable" for convicted bank-fraud defendant Fred D. "Dave" Clark, former chief of the failed Cay Clubs Resorts and Marinas, federal prosecutors say.

Clark "has repeatedly advanced his view that everyone is to blame for his conduct but himself," prosecutors wrote. The "defendant has exhibited a decades-long pattern of making up his own rules and avoiding responsibility for breaking the law. Until now."

The 11-page sentencing memo describes prison terms in other financial fraud cases, including the 50-year sentence imposed on disgraced Fort Lauderdale attorney Scott Rothstein.

Clark was convicted Dec. 11 after a five-week retrial, after a jury could not reach a verdict in his first trial.

Federal authorities say Cay Clubs was a $300 million Ponzi scheme.

Yikes, a life sentence for this crime... when Rothstein -- the supposed worst of the worst -- gets 50. That seems way too high. What say you?

Meantime, it's the first oral argument without Justice Scalia this morning, in this exclusionary rule case: "Should courts suppress evidence obtained from a suspect after a police officer executes a valid arrest warrant, if the officer first illegally detained the suspect?"

Big Federal Bar Shindig tonight

It's the 35th annual judicial reception.  It's so big that you can win a free iPad Air!!

FREE iPad Air GIVEAWAY! We will be conducting a membership drive. If you sign up for membership in the Federal Bar Association at the federal judicial reception, you will be entered into a raffle to win an Apple iPad Air. 

Hopefully, it won't be able to be backdoored...

Good for Tim Cook and Apple.

"The bottom line is that President Obama’s nominee is not getting confirmed before the election."

That's SCOTUSblog's Tom Goldstein in this post about who might get the nomination.  His latest thinking is Ketanji Brown Jackson, a district judge in D.C.:

Ketanji Brown Jackson is a judge on the U.S. District Court for the District of Columbia.  She was confirmed by without any Republican opposition in the Senate not once, but twice.  She was confirmed to her current position in 2013 by unanimous consent – that is, without any stated opposition.  She was also previously confirmed unanimously to a seat on the U.S. Sentencing Commission (where she became vice chair).
She is a young – but not too young (forty-five) – black woman.  Her credentials are impeccable.  She was a magna cum laude graduate of Harvard College and cum laude graduate of Harvard Law School.  She clerked on the Supreme Court (for Justice Stephen Breyer) and had two other clerkships as well. As a lawyer before joining the Sentencing Commission, she had various jobs, including as a public defender.
Her family is impressive.  She is married to a surgeon and has two young daughters.  Her father is a retired lawyer and her mother a retired school principal.  Her brother was a police officer (in the unit that was the basis for the television show The Wire) and is now a law student, and she is related by marriage to Congressman (and Speaker of the House) Paul Ryan.
Judge Brown Jackson’s credentials would be even stronger if she were on the court of appeals rather than the district court and if she had been a judge for longer than three years.  One person whom I know who has been deeply and directly involved in prior confirmations is confident the president would not nominate someone from the district court.
I disagree because these are special circumstances.  It is easy to see a political dynamic in which candidate Hillary Clinton talks eagerly and often about Judge Brown Jackson in the run-up to the 2016 election, to great effect.

 Another reason to support her -- she is also a local, having gone to Palmetto High School.  If I remember correctly, she won nationals in oratory, which was a big deal to us debate nerds back then. I also knew her in law school, so if it's Judge Ketanji Brown Jackson, I hope Tom is wrong about the nominee not getting confirmed.

Adalberto Jordan makes SCOTUS shortlist

Yesterday I raised the possibility of President Obama nominated 11th Circuit Judge Adalberto Jordan:

That brings up an interesting idea... what about Obama nominating Judge Jordan?  A moderate, former prosecutor.  He would be the first Cuban-American on the Court.  He clerked for Justice O'Connor and he even played baseball at UM.  He was confirmed 93-1 for the district seat and 89-5 for the 11th Circuit, so he sailed through.  He would also be the first Floridian on the Court, something I have discussed before.

Today, the New York Times also lists Jordan as a potential candidate:

Adalberto J. Jordan

AGE 54.

CURRENT ROLE Judge on the United States Court of Appeals for the 11th Circuit.

BACKGROUND Hispanic man. Born in Cuba. Attended University of Miami School of Law. Clerked for Justice Sandra Day O’Connor, a Reagan appointee. A former federal prosecutor. Appointed to Federal District Court by President Bill Clinton in 1999 and elevated to the appellate court by Mr. Obama in 2012. Confirmed 94 to 5, with 41 Republicans voting in favor.

DISCUSSION Judge Jordan would be the second Hispanic and first Cuban-American justice on the Supreme Court. The White House may calculate that a decision by Republicans to block him could have political consequences in places with sizable Latino voting populations — including his home state of Florida, a swing state in presidential elections, which also has a Senate election this year.

SCOTUSBlog's Tom Goldstein hasn't mentioned Jordan yet.  His money is on Loretta Lynch.  But he does say this:

Minority voters are a different matter.  Traditionally, black and Hispanic turn-out has trailed white turn-out.  In the 2004 election, the percentages were white 67.2%, black 60.0%, and Hispanic 47.2%.  In 2008, they were white 66.1%, black 64.7%, and Hispanic 49.9%.  The 2012 election was the first in which the proportion of black turn-out exceeded that of whites.  The percentages were white 64.1%, black 66.2%, and Hispanic 48.0%.
Overall, in 2012, the white proportion of the voting population decreased to 71.1% and the minority proportion increased to 28.9% (22.8% black and Hispanic).  For that reason, many attribute President Obama’s reelection to minority turn-out.
The best candidate politically would probably be Hispanic.  Hispanic voters both (a) are more politically independent than black voters and therefore more in play in the election, and (b) historically vote in low numbers.  In that sense, the ideal nominee from the administration’s perspective in these circumstances is already on the Supreme Court:  Sonia Sotomayor, the Court’s first Latina.

Some quick thoughts on Scalia and going forward

Love him or hate him, he was the most gifted (and entertaining) writer we have ever seen on the Court. "Applesauce" "Jiggery-pokery" "Argle-Bargle" "SCOTUScare"

And he was not at all predictable (like Alito/Thomas). In fact, he jokingly called himself the "best friend" of criminal defendants. And he was!  He was the lone vote to strike down he sentencing guidelines many years before Booker. 

He led the charge on the confrontation rights of those accused of crimes. See, e.g., Melendez-Diaz v. Massachusetts (5-4 opinion where Scalia was deciding vote in favor of criminal defendant).  He was much more defense oriented than Breyer or Kagan, that's for sure.

Even on 4th Amendment issues, he was much better than the so-called liberals.  Check out his dissent in Maryland v. King (the DNA case): "The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. These DNA searches have nothing to do with identification. ... If the Court’s identification theory is not wrong, there is no such thing as error. ... The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence." 

He also has written majority opinions rejecting infrared surveillance, GPS tracking of cars, and dog sniffs of our homes.  

Of course, he wasn't perfect (see gay marriage, Bush v. Gore, etc), but he was by far the most interesting Supreme Court Justice in our lifetime. RIP.

But now the fight comes.  Who can get confirmed?

Donald Trump said last night in the GOP debate that he would nominate someone like Judge William Pryor.  Judge Pryor and I had this case where we butted heads.  He's also had this recent battle with Judge Jordan.  

That brings up an interesting idea... what about Obama nominating Judge Jordan?  A moderate, former prosecutor.  He would be the first Cuban-American on the Court.  He clerked for Justice O'Connor and he even played baseball at UM.  He was confirmed 93-1 for the district seat and 89-5 for the 11th Circuit, so he sailed through.  He would also be the first Floridian on the Court, something I have discussed before.

So, what do you think?  Is Judge Jordan a viable choice for President Obama?

RIP Justice Scalia

Wow, this is sad news. Everyone is talking replacement right now, but we should give the guy his due. He will be remember as the best writer ever on the Supreme Court. And, although Rumpole and I disagree on this, he is one of the best Justices for criminal defendants and criminal justice issues. More to follow...

BREAKING -- Judge Abdul K. Kallon nominated to 11th Circuit

This is big news.  The nomination comes out of Alabama to fill Judge Dubina's seat.  This would be the first African American judge to serve on the 11th Circuit out of Alabama.  More to follow...

(H/T Glenn Sugameli).

Huge win for the FPD's office...

...in the Florida Supreme Court for Tracy Dreispul who raised the issue in the 11th Circuit.  This is going to affect a lot of cases.

This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In United States v. Clarke, 780 F.3d 1131 (11th Cir. 2015), the court certified the following question to this Court:

Florida law prohibits a person from “own[ing] or . . . hav[ing] in his or her care, custody, possession, or control any firearm . . . if that person has been . . . [c]onvicted of a felony in the courts of [Florida].” Fla. Stat. § 790.23(1). For purposes of that statute, does a guilty plea for a felony for which adjudication was withheld qualify as a “convict[ion]”?

Id. at 1133. Section 790.23(1)(a), Florida Statutes (2008), in pertinent part, makes it a criminal offense for a person to own or have in his or her care, custody, possession, or control any firearm if that person has been convicted of a felony in the courts of this state.1 Thus, this Court is asked by the Eleventh Circuit to determine if, under Florida law, a person is “convicted” for purposes of that statute if the person has entered a plea of guilty to a felony offense but adjudication for that offense has been withheld. For the reasons that we explain, we answer the certified question in the negative and hold that for purposes of section 790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does not qualify as a “conviction” under that statute.

WOW!