The Scalia of the 11th Circuit...

Lawyers who practice in the 11th Circuit like to compare Judge Ed Carnes to Justice Scalia. Here's the opening paragraph of Carnes' most recent opinion addressing whether a district court can dismiss a civil case with prejudice because the plaintiff had filed his complaint and litigated the case up to trial using a false name:

If, as the Bible says, "[a]n honest answer is like a kiss on the lips," Proverbs 24:26 (N.I.V.), a pleading founded on a lie is like a kick in the gut. The question this appeal presents is whether a district court can dismiss a case with prejudice because the plaintiff filed and litigated his complaint under a false name.

Carnes answers yes. Scalia-like? Hat Tip to Orin Kerr.

Santiago Alvarez and Osvaldo Mitat to plead guilty

Cuban exiles Santiago Alvarez and Osvaldo Mitat cut plea deals on one count of conspiring to possess illegal weapons, which carries a five-year maximum prison penalty. The men, who remain in custody, face sentencing Nov. 14. Jay Weaver's article here. The following interesting note from Vanessa Blum's article:

Before his arrest, Alvarez was best known for his support of Cuban militant Luis Posada Carilles. Cuban and Venezuelan authorities accuse Posada of orchestrating the bombing of a Cuban airliner in 1976 that killed 73 people.When Posada mysteriously arrived in Miami in 2005 after years in hiding, Alvarez acted as his chief spokesman and defender. Posada is in federal custody in El Paso, Texas, where he has been held since his arrest on immigration charges.Last year, an immigration judge ruled Posada should be deported but said he could not be sent to Cuba or Venezuela.On Monday, U.S. Magistrate Judge Norbert Garney ruled Posada should be set free while he waits to be deported, according to Posada's El Paso attorney, Felipe D.J. Millan. If a federal district judge upholds the ruling, Posada could be released in about 30 days, Millan said.

"‘Biz op’ scams a quick way to get fleeced"

That's the headline of John Pacenti's DBR article this morning. Looks like the U.S. Attorney's office is doing its best to get some favorable press these days. Here's the intro of the article:

In the world of South Florida schemes and cons, there is always a new way to dress up the same old pig. These days it’s peddling “business opportunity investments” in DVD vending machines, dial-up ATMs, mobile check-cashing units and Internet kiosks to those susceptible to the get-rich-quick American myth. The scam artists have been keeping the U.S. attorney’s office for the Southern District of Florida busy. Federal prosecutors nickname these types of crimes “biz op” — short for business opportunity fraud. U.S. Attorney Alex Acosta said his office is cracking down on scams that have robbed millions of dollars from thousands of victims. Since February 2005, the USAO’s Economic and Environmental Crimes division estimates it has filed charges against about 40 people involved with about a dozen companies. They promised people a way to earn big-time income with relatively little effort in mostly turnkey businesses. Federal prosecutors say members of the public are targeted when they bite on advertisements — television, Internet or others — for a generalized business opportunity. These leads are then passed on to boiler rooms, where skilled phone sales staff peddle the “once-in-a-lifetime” opportunity. The technique has been working for decades. Prosecutors say the companies have defrauded more than 4,000 victims of $60 million.

What struck me about the article was not so much the words, but Alex Acosta's picture... Check out how mean he's looking above:

Remembering 9/11

I was actually in trial on 9/11 -- a false passport case in front of Judge Ungaro. I vividly remember the courtroom deputy handing the Judge a note. We didn't stop at that point but I could see something was wrong. I didn't have a cellphone on, but I did have a beeper (does anyone have beepers anymore) which started to buzz and buzz. Then a second note. This time, Judge Ungaro said we would be taking a recess. I looked at my beeper. I was getting 911 beeps from my wife. I left the building, turned on my cellphone, and called my wife. She told me what was going on and to leave the building because the news was reporting that Miami might be a target. I ended up watching the towers come down in a little pawn shop on North Miami Avenue. It was completely surreal, standing there on the street watching all of this unfold. It's still hard to believe. When the courthouses reopened the following week, Judge Ungaro declared a mistrial...

Please share where you were on 9/11.

Magistrate recommends that Padilla motions be denied

Magistate Judge Stephen Brown has recommended that Jose Padilla's motions to suppress be denied. Here's the AP article about the rulings. The defense will now appeal to the District Judge, Marcia Cooke. Here's a snippet from the article:

Brown found that Padilla had not been placed immediately under arrest by the FBI when he arrived at Chicago's O'Hare International Airport in May 2002. Since he was not in official custody, Brown said it was not required for the agents to read him his Miranda constitutional rights before interrogating him.

''Defendant was not restrained at any time, by handcuffs or otherwise. Every effort was made for defendant to be made comfortable, in a non-threatening setting,'' Brown said in his ruling released Friday. ``He was never told that he was not free to go.''

Brown also denied Padilla's motion to suppress evidence seized at the airport, rejecting arguments that the material witness warrant eventually used to arrest him was based on statements from one source who claims he was tortured and another who was heavily medicated.

Padilla's attorneys identified one of the sources as Abu Zubayda, a top al-Qaida leader recently transferred from a secret CIA prison overseas to the U.S. detention center at Guantánamo Bay, Cuba. The other source was named as Binyam Ahmed Muhammad, who is also at Guantánamo and claims he was tortured after his arrest in Pakistan in April 2002.

Judges citing blogs

According to the National Law Journal:

Judges have discovered the Internet's 600 legal blogs, citing them at least 32 times in 27 decisions over the last two years. A blog, short for Web log, is a Web page that acts as a continuous journal of the writer's commentary, news and links to related sites. Blogs began, often as personal diaries, in the 1990s but came into their own in recent years among lawyers who use them to share with peers the latest developments in legal specialties. The ability to burrow deeply into a specialized area of the law with continuous updates has an undeniable appeal to practitioners. This phenomenon was not lost on Ian Best, a 36-year-old law school graduate who began a blog, "3L Epiphany," as an independent study project for academic credit at Ohio State University's Michael E. Moritz College of Law. It is a taxonomy of legal blogs. Best counted them, classified them and tracked their development. "The most significant development is judges citing blogs," said Best, who lives in Columbus, Ohio, and is awaiting his bar exam results.

For those of you who are interested, the list is here.

Elections vs. Appointments

There is always debate in Miami about whether judges should be appointed or elected. I find it one of the toughest questions to answer and I go back and forth as to how I feel. But, the voters have spoken. New state judges can be found here. Also, Rumpole -- who looks like he has had a very busy night -- has all the commentary.

"Let me explain the government to you. There’s God, then there’s the president and then there’s my father.”

— Jack Roberts, 6-year-old son of Chief Justice John Roberts, overheard speaking to one of his young peers on the last day of summer camp.