735 F.3d 483 (6th Cir. 2013), 12-3585, United States v. Llanez-Garcia

Docket Nº:12-3585.
Citation:735 F.3d 483
Opinion Judge:JANE B. STRANCH, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gabriel LLANEZ-GARCIA, Defendant, Debra Kanevsky Migdal, Interested Party-Appellant.
Attorney:Gregory L. Poe, Poe & Burton PLLC, Washington, D.C., for Appellant. Demetra Lambros, United States Department of Justice, Washington, D.C., for Appellee. Gregory L. Poe, Poe & Burton PLLC, Washington, D.C., for Appellant. Demetra Lambros, United States Department of Justice, Washington, D.C., for...
Judge Panel:Before: GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge. [*]
Case Date:November 05, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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735 F.3d 483 (6th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,


Gabriel LLANEZ-GARCIA, Defendant,

Debra Kanevsky Migdal, Interested Party-Appellant.

No. 12-3585.

United States Court of Appeals, Sixth Circuit

November 5, 2013

Argued June 19, 2013.

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[Copyrighted Material Omitted]

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Gregory L. Poe, Poe & Burton PLLC, Washington, D.C., for Appellant.

Demetra Lambros, United States Department of Justice, Washington, D.C., for Appellee.


Gregory L. Poe, Poe & Burton PLLC, Washington, D.C., for Appellant.

Demetra Lambros, United States Department of Justice, Washington, D.C., for Appellee.

Candace C. Crouse, Strauss Troy LPA, Cincinnati, Ohio, Pierre H. Bergeron, Lauren S. Kulley, Squire Sanders LLP, Cincinnati, Ohio, Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Amici Curiae.

Before: GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge. [*]


JANE B. STRANCH, Circuit Judge.

An attorney's reputation is her most valuable possession. It forms the basis for her peers' view of her and plays an important role— often a determinative one— in how she advances in her career. This case began with a government attorney's unauthorized filing of a motion for sanctions against Debra K. Migdal, an attorney who has served as an Assistant Federal Public Defender for nearly 25 years. It quickly took on a life of its own, resulting in two district-court orders strongly, publicly, and, we conclude, erroneously reprimanding Migdal. Because the record does not support any basis for these orders, we VACATE the sections of the first order pertaining to sanctions, REVERSE the second order in its entirety, and DISMISS the sanctions proceeding against Migdal.


A. Events leading to issuance of the subpoenas

The sanctions proceeding against attorney Migdal at issue in this appeal arises out of Gabriel Llanez-Garcia's prosecution for alien smuggling. See 8 U.S.C. § 1324. Llanez-Garcia was in a vehicle with three other men on April 6, 2011, when an Ohio State Highway Patrol (OSHP) officer pulled the vehicle over. Unable to communicate with the vehicle's Spanish-speaking occupants, the OSHP officer called the United States Border Patrol to the scene. After the Border Patrol officers determined the four men were Mexican citizens in the United States illegally, they were

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arrested. A dash-cam videotape mounted on the OSHP patrol car recorded the encounter.

Days after his arrest, Migdal was appointed to represent Llanez-Garcia and the case was assigned to Judge John R. Adams. The preliminary hearing was held on April 15. Planning to challenge the legality of the stop, Migdal requested the Border Patrol report of the investigation and the names of the vehicle's three other occupants. The government agreed to supply the report. Migdal also asked the Border Patrol agent for the occupants' locations and whether they had been deported or voluntarily returned to Mexico. He told Migdal that he did not know. Later that day, Migdal sent a letter via fax and mail to Gregory Sasse, the Assistant United States Attorney assigned to the case, objecting to the release or deportation of the three men. As it was a Friday, Migdal asked Sasse if they could discuss the issue on Tuesday, April 19.

Unbeknownst to Migdal, two of the men had already been deported to Mexico on April 12 on a flight that ferries undocumented immigrants from Cleveland to Mexico every Tuesday. On Tuesday, April 19, the driver of the car— the third and final witness— was put on the weekly flight and deported as well. Sasse later denied receiving Migdal's letter and implied to the court that Migdal may not have sent it in the first place.

Migdal made a general discovery request to the government on April 27 pursuant to Federal Rule of Criminal Procedure 16. Among other things, Rule 16 enables a defendant to obtain " books, papers, documents, data, photographs, [or] tangible objects" in " the government's possession, custody, or control," as long as the items are either material to preparing the defense or will be used in the government's case-in-chief at trial. Migdal asked for such items falling under this rubric. She also asked the government to preserve all rough notes and evidence in the case, including dispatch tapes, and to ensure that " all discovery is turned over."

Sasse emailed Migdal documents in response to her request two days later. The information he sent included a Border Patrol report, Llanez-Garcia's Record of Deportable/Inadmissible Alien from the Department of Homeland Security (Form I-213), the criminal complaint issued against him, the Border Patrol agent's affidavit, and Llanez-Garcia's statement (Form I-215B).

On May 17, Migdal emailed Sasse to object to apparent redactions of certain names in the discovery materials and asked him to provide unredacted versions of the documents. Sasse refused, citing a policy of protecting the identities of witnesses. Though neither attorney knew it at the time, Sasse and Migdal's apparent disagreement was unfounded: The names Sasse believed were redacted were already disclosed in the government's response, and the redactions to which Migdal objected pertained only to the witnesses' foreign addresses, for which Migdal had no need. Terse emails fired back and forth for two days. The volley ended when Migdal threatened to file a motion to compel the government to produce the documents to which she believed she was entitled.

Migdal, however, did not file a motion to compel at that time. Instead, on May 26, 2011, she issued two subpoenas pursuant to Federal Rule of Criminal Procedure 17(c) to the custodians of records at the OSHP and the Border Patrol. A Rule 17(c) subpoena commands a person to appear to testify or to " produce any books, papers, documents, data, or other objects" without testifying. Fed.R.Crim.P. 17(c)(1). The rule says that a court " may direct" production of designated items " in court

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before trial or before they are to be offered in evidence," and " may permit the parties and their attorneys to inspect all or part of them." Id. Filling in AO Form 89— the generic Rule 17(c) subpoena form provided by the Administrative Office to the United States Courts and available on the Northern District of Ohio's website— Migdal sought " audio/visual recordings and/or other documentation relating to the vehicle stop and subsequent encounter," including " dispatch tapes, radio communications, unit to unit communications and dash cam recordings." Migdal later explained that she needed materials related to the traffic stop underlying Llanez-Garcia's arrest to support a motion to suppress, which she ultimately filed on June 1.

Only one Rule 17(c) subpoena form exists. The stock language on it " command[s]" the recipient " to appear in the United States district court at the time, date, and place shown below to testify in this criminal matter." In the " place of appearance" box, Migdal wrote in Judge Adams's courtroom and fixed the date and time for June 3 at 9:00 a.m. Migdal also provided contact information for an investigator and an attorney the recipients could call to arrange delivery of the subpoenaed materials instead of appearing in person.

The problem— and the central reason this sanctions proceeding materialized— was that no hearing was scheduled for June 3. Instead, the only two dates on the court's calendar were June 9, the date set for a pretrial hearing, and June 20, the date on which trial was to begin. According to Migdal, she placed an early return date on the subpoenas because she anticipated the June 9 pretrial hearing would be converted into an evidentiary hearing on her suppression motion and she needed time to review the subpoenaed materials prior to that date. She stated in an affidavit that her purpose was to not " disrupt the Court's schedule" or " have to move for a continuance of the evidentiary hearing and/or trial." Migdal insisted that she did not " act with any improper motive," nor have " any intent to misuse the Court's subpoena power."

Meanwhile, upon receiving the subpoena, the Border Patrol agent who arrested Llanez-Garcia contacted Sasse to see if he was required to appear with documents in Judge Adams's courtroom on June 3. Sasse advised the agent to ignore the subpoena.

On June 2, Sasse moved the court to quash the Border Patrol subpoena and to sanction Migdal. (At the time, Sasse did not know that Migdal served a separate subpoena on the OSHP.) Still unaware that the names of the individuals arrested with Llanez-Garcia had been disclosed, Sasse's motion complained that Migdal was trying to end-run the discovery process by using a subpoena to learn their identities. He further charged that Migdal violated Rule 17(c) by failing to get court authorization before issuing the subpoenas and by commanding a Border Patrol agent to appear and produce documents at a non-existent hearing. Finally, Sasse moved " for whatever sanctions the Court deems appropriate." The district court ordered on June 3 that the motion to quash would be resolved at the pretrial conference scheduled for June 9.

At that conference, Sasse provided Migdal with the Border Patrol's dash-cam videotape, photographs, and written notes related to the stop. He also learned for the first time that Migdal had separately subpoenaed the OSHP and had already received overlapping materials from the state trooper, including the OSHP's dash-cam recording, a recording of the dispatch call, and a written log. In response to the allegations in Sasse's June 2 motion, Judge

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Adams continued Llanez-Garcia's trial and set a separate...

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