What’s left for SCOTUS before their summer break?

Teachers and Supreme Court Justices get the summer off. The Justices have a few more opinions to get out before they hit the beach. CNN covers what’s left, including the census case.  But I’m waiting for this one:

Double Jeopardy (Gamble v. United States)
The Double Jeopardy clause to the Fifth Amendment prohibits more than one prosecution for the same offense. There is an exception, however, that is called the "separate sovereigns exception."
Under the exception, prosecutions are allowed to bring charges for the same offense if the charges are brought by state and federal government. The Supreme Court is being asked to get rid separate sovereigns exception.
Critics contend that in the modern day it leads to harassment of defendants -- especially the poor -- who can't afford to fight on two fronts.
The case could impact President Donald Trump's pardon power as it applies to the Robert Mueller probe. The thinking goes that if he pardoned someone like Paul Manafort, then state officials could not bring the same charge against him. Others say that it would have no impact because state prosecutors would be savvy enough to bring charges for a different offense.The Trump administration argued that the exception should remain on the books.
Why it matters:
On one hand, the federal government and others say this exception is meant to protect the independent power of state and federal governments. It has been a part of the court's fabric for more than 150 years.

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.