Opinion
Case No. 1:19-cr-00025-DAK-CMR-1
08-06-2020
UNITED STATES OF AMERICA, Plaintiff, v. JUAN ANTONIO AVILA, Defendant.
REPORT AND RECOMMENDATION
District Judge Dale A. Kimball Magistrate Judge Cecilia M. Romero
This matter is referred to the undersigned under 28 U.S.C. § 636(b)(1)(A) (ECF 48). For the reasons stated below, the undersigned RECOMMENDS that the district judge issue an order to show cause against Lory Rosenberg (Ms. Rosenberg) and Mark Alvarez (Mr. Alvarez) of Immigrant Defenders Law Group PLLC (Immigrant Defenders) for contempt of court for violating and disobeying an order of this court. Pursuant to 28 U.S.C. § 636(e)(6)(B)(iii), the undersigned hereby certifies the following facts to the district judge for contempt proceedings.
CERTIFIED FACTS
1. On June 22, 2020, the United States filed a Notice and Request for Hearing regarding the continued representation of Defendant Juan Antonio Avila (Defendant) (ECF 70). The United States alleged that there are facts indicating that Defendant's counsel Aaron Tarin (Mr. Tarin) of Immigrant Defenders, may not be competent to continue to represent Defendant (ECF 70 at 2).
2. On June 25, 2020, the court set a hearing on July 1, 2020 at 10:00 a.m. regarding the continued representation of Defendant (ECF 71). The notice of hearing was later amended to reset the time of the hearing for 11:00 a.m. (ECF 72). The court arranged for Ms. Vanessa Ramos (Ms. Ramos), an attorney from the Federal Public Defenders, to be present at the hearing as standby counsel for Defendant.
3. At the hearing on July 1, 2020, no representative from the Immigrant Defenders office was present (ECF 73). The courtroom deputy contacted Immigrant Defenders to ask if another attorney could fill in for Mr. Tarin, but was told that they were not aware of the hearing and that no one was available (id.). The court set a status conference on July 15, 2020 at 9:30 a.m. to address the matter further and ordered a representative from Mr. Tarin's office to be present at the status conference (id.). The court's order is reflected in the minute entry for the hearing (id.).
4. After the hearing, the courtroom deputy emailed the minute entry for the hearing to a member of Immigrant Defenders' staff who responded confirming receipt of this email. The notice of hearing was later amended to reset the time of the hearing for 10:30 a.m. (ECF 74), and the amended notice was also emailed to counsel. Following the hearing, the courtroom deputy also called Immigrant Defenders to inform it that the court expected a representative to be present at the status conference.
5. On July 14, 2020, the courtroom deputy emailed call-in instructions for the status conference to counsel. On the morning of July 15, 2020, the courtroom deputy sent a final reminder email to counsel.
6. At the status conference on July 15, 2020, no representative from the Immigrant Defenders was present (ECF 76). At the beginning of the status conference, the courtroom deputy emailed Immigrant Defenders to notify them the hearing had started, and the court was waiting for someone from their office to appear. The courtroom deputy also called Immigrant Defenders and was told that no one would be attending the hearing because Ms. Ramos was representing Defendant. The court noted on the record that it had previously ordered that a representative to appear on behalf of Mr. Tarin (ECF 76). Ms. Rosenberg and Mr. Alvarez nonetheless failed to appear.
7. The court gave Defendant and Ms. Ramos an opportunity to meet and discuss the situation regarding Mr. Tarin (id.). After Defendant requested Ms. Ramos to continue as his attorney, the court formally appointed Ms. Ramos to represent Defendant (id.).
CERTIFICATION
The undersigned certifies the foregoing facts to the district judge under 28 U.S.C. § 636(e)(6)(B)(iii) as constituting civil contempt. The record shows that Ms. Rosenberg and Mr. Alvarez of Immigrant Defenders violated and disobeyed an order of this court. Accordingly, IT IS HEREBY RECOMMENDED that, the district judge establish a day certain to show cause why Ms. Rosenberg and Mr. Alvarez should not be adjudged in contempt and suffer the imposition of sanctions.
IT IS SO ORDERED.
DATED this 6 August 2020.
/s/_________
Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah