TERESA J. JAMES, Magistrate Judge.
This is a denaturalization case brought by Plaintiff United States of America ("the Government") against naturalized citizen Defendant Afaq Malik ("Malik"). This matter is pending before the Court on Malik's Motion for Sanctions for Plaintiff's Willful Tampering with a Material Witness (ECF No. 71). Malik requests an order sanctioning the Government for its counsel's alleged misconduct with respect to two witnesses. The Government opposes the motion, arguing that Malik's accusations are supported only by mischaracterization of the evidence, selective snapshots of evidence, and inaccurate statements of the law. As explained below, the Court denies the motion.
On November 21, 2000, Malik filed his I-485 application seeking to become a lawful permanent resident based upon his October 23, 2000 marriage to Venita McIntosh ("McIntosh"), a United States citizen. Malik filed his N-400 Application for Naturalization on April 5, 2004. On July 15, 2004, USCIS officer Carolyn Jacobs ("Jacobs") conducted Malik's naturalization interview. His application was approved, and he became a naturalized United States citizen on January 15, 2009.
The Government filed its Complaint to revoke Malik's naturalization (ECF No. 1) on May 28, 2015.
On December 9, 2015, Malik's counsel sent an email to counsel for the Government, Dillon Fishman ("Fishman") inquiring whether Jacobs and two other officers were located in the Kansas City area as "[t]hat would affect the order of the depositions [he] would plan to take."
Fishman contacted Jacobs by telephone on April 4, 2016 and April 13, 2016. Fishman provided Jacobs' contact information to Malik's counsel on April 14, 2016, and confirmed that Fishman did not represent Jacobs, who had been retired ten years.
On April 22, 2016, Fishman was in Kansas City, Kansas for the McIntosh deposition. He arranged to meet with Jacobs after the deposition and before his flight back to Washington, DC. Fishman met Jacobs in the lobby of the Kansas City Airport Marriott for approximately two hours. During the meeting, Jacobs reviewed Malik's N-400 application and answered questions. Fishman typed notes into his laptop computer as Jacobs answered questions.
On April 25, 2016, Fishman drafted an eight-page declaration and emailed the password-protected Word document to Jacobs. On April 27, 2016, Jacobs made changes to the declaration and signed it in front of a notary (the "Jacobs Declaration"). She changed her description of the words she used to administer the oath, added the documents she asked for, and added that attorneys could be present during naturalization interviews.
On May 3, 2016, Malik issued a subpoena to Jacobs, setting her deposition for May 11, 2016. The Government decided to issue a subpoena to Jacobs as well, and Fishman called Jacobs to confirm her availability for the deposition. During her deposition, Jacobs testified that she did not have any specific memory of the naturalization interview she conducted of Malik on July 15, 2004. Jacobs also testified that the only time she went over Malik's N-400 application with Fishman was when she met with Fishman on April 22, 2016. Jacobs testified that Fishman asked her questions, told her it was a denaturalization case, and a fraud case. She explained that she understood Fishman's statement it was a "fraud case" to mean that Malik had lied on his application in order to gain his permanent residence.
Three hours after her deposition concluded on May 11, 2016, Jacobs sent Fishman the following email message:
McIntosh was first deposed on April 22, 2016. At that deposition, she was represented by her own counsel. On or about May 2, 2016, McIntosh received a copy of her deposition transcript with a letter advising that she had 30 days to make any corrections on the errata sheet.
After her deposition, McIntosh made multiple phone calls and sent two letters to Malik in mid-May 2016 ("the McIntosh letters"). In one of the letters, McIntosh stated:
On May 12, 2016, McIntosh left Malik four voicemail messages. In one of them, she stated:
On May 24, 2016, Malik's counsel emailed copies of the two McIntosh letters to Fishman.
On May 31, 2016, McIntosh called Fishman and told him she was calling to correct her deposition testimony.
Based upon the May 31 telephone conversation with McIntosh, Fishman drafted a declaration for McIntosh. On June 3, 2016, he emailed it to USCIS personnel for them to deliver to McIntosh, but neither USCIS personnel nor Fishman was able to reach McIntosh.
On August 2, 2016, McIntosh called Fishman again stating she still wanted to correct her deposition.
Fishman updated his previous draft declaration for McIntosh and emailed it to USCIS personnel.
On August 4, 2016, two immigration Officers went to McIntosh's home and provided her with the three-page typed "Record of Sworn Statement."
Malik filed a motion for leave to take a second deposition of McIntosh on August 8, 2016. After obtaining leave, Malik took McIntosh's second deposition on August 19, 2016. During this deposition, McIntosh testified that someone from the Government called her three days after her April 22, 2016 deposition and said he thought she lied at her deposition.
McIntosh admitted at her second deposition that she did not send back the errata sheet to correct her testimony from her first April 22, 2016 deposition.
The Government did not file or submit the Jacobs Declaration or McIntosh's Sworn Statement in support of its Motion for Summary Judgment (ECF No. 80) or any related briefing, or in its Memorandum in Opposition to Malik's Motion for Summary Judgment (ECF No. 101).
A court has the inherent authority to manage judicial proceedings and to regulate the conduct of those appearing before it, and pursuant to that authority may impose appropriate sanctions to penalize and discourage misconduct.
Malik alleges that counsel for the Government, Fishman, tampered with the testimony of Jacobs, a retired USCIS officer who conducted Malik's July 15, 2004 naturalization interview. The alleged tampering includes feeding information to Jacobs before her deposition, creating a sham declaration, coaching her on the deposition questions, and signaling answers during the deposition. Malik asks the Court to sanction the Government for its counsel's intentional misconduct by dismissing the First Amended Complaint and striking Jacobs from testifying at trial or in support of the Government's motion for summary judgment.
Malik first alleges that Fishman tampered with Jacobs' testimony by meeting with her before her deposition for the purpose of manipulating her testimony regarding Malik's naturalization interview in 2004. Malik alleges that Jacobs repeatedly admitted to having no independent memory of Malik's interview twelve years prior, but made specific statements in her Declaration and deposition recalling specifically what questions she asked and Malik's responses to those questions. According to Malik, this shows that Fishman improperly tampered with Jacobs so that her testimony would support the Government's allegation that Malik lied at his naturalization interview.
The Government denies that Fishman met with Jacobs for the purpose of coaching or tampering with Jacobs' testimony before her deposition. It argues there is nothing improper or unethical about meeting with a witness and preparing a witness for a deposition. The Government argues that Jacobs' own testimony does not support the claim that Fishman coached her. Jacobs testified during her deposition that during the April 22, 2016 meeting with Fishman, they discussed Jacobs' general procedures and practices for taking naturalization interviews and the contents of Malik's N-400 naturalization application. The Government also argues this was before either party had subpoenaed Jacobs for a deposition.
The Court finds it was not improper or unethical for Fishman to meet with Jacobs in anticipation of her deposition. The Kansas Rules of Professional Conduct
Malik provides no legal authority prohibiting Fishman from interviewing or even preparing Jacobs to testify. Restatement (Third) of the Law Governing Lawyers § 116 (2000) expressly provides that "[a] lawyer may interview a witness for the purpose of preparing the witness to testify."
Malik has not shown that Fishman tampered with Jacobs to elicit false testimony as to a material fact in this case, and the record does not support any such finding. Jacobs consistently stated at her deposition and in her Declaration that she "[does] not have any specific memory of the naturalization interview [she] conducted of Malik on July 15, 2004."
Malik argues that the email Jacobs sent to Fishman a couple hours after her deposition shows that Jacobs knew her testimony was crucial to the Government proving what Malik said at his naturalization interview, because the Government cannot prove Malik provided "false testimony" without proof of what Malik said under oath. In her email, Jacobs stated, "Again, I want to apologize if I messed up royally today. I sincerely hope I have not ruined all chances for rescinding Mr. Malik's Naturalization."
Malik cites several cases in which a party was sanctioned for tampering with a witness. However, the cases cited by Malik are factually distinguishable from this case. For example, Malik argues the facts present in this case are "quite similar" to the witness tampering found in Ramsey v. Broy.
With regard to Malik's claim that Fishman deliberately withheld Jacobs' contact information, Fishman states in his Declaration that he did not learn Jacobs' contact information until early April 2016. He also states that he "wanted to confirm the Justice Department's practices and requirements regarding former Government employees, including Touhy regulations" before providing her contact information, which he provided on April 14, 2016.
Malik next alleges that the Jacobs Declaration drafted by Fishman is a "sham" because it is based upon information Fishman provided to Jacobs and not her actual knowledge and memory of Malik's naturalization interview. Malik argues the Jacobs Declaration contains a number of statements about specific things Malik allegedly said during his naturalization interview with Jacobs twelve years ago, in 2004. Malik claims the majority of these statements were knowingly false because Jacobs testified she had no specific memory of Malik or his naturalization interview, or they were inconsistent with her deposition testimony.
The Government contends that Fishman drafted the Jacobs Declaration based upon information and answers Jacobs provided to him during their April 22, 2016 meeting. Jacobs repeatedly testified during her deposition that the words in the Declaration were her own. The Government contends there is nothing improper about Fishman drafting a declaration for Jacobs based on the facts she provided during their April 22, 2016 meeting.
Although Malik refers to the Jacobs Declaration as a "sham affidavit," Malik is not arguing the Declaration was drafted by Fishman to create a question of fact to avoid summary judgment.
In support of his argument, Malik points out in his reply that the metadata from the Jacobs Declaration shows Fishman pre-drafted the Jacobs Declaration before they met on April 22, 2016. Specifically, the "content created" date shows the document was first created on April 5, 2016 and not April 25, 2016, the date Fishman states he first began drafting it. However, the Government in its Surreply (ECF No. 106) explains that Fishman used a declaration from another case as a template for the Jacobs Declaration, and this explains why the document "content creation" date of April 5, 2016 was before the date Fishman stated he drafted the Jacobs Declaration. The Court finds the Government's explanation for the April 5 "creation date" refutes Malik's argument that Fishman pre-drafted the Jacobs Declaration before meeting with Jacobs on April 22, 2016. The Court also notes that Fishman, in his Supplemental Declaration, affirmatively states that he "did not work on the [D]eclaration until [he] met with Ms. Jacobs, asked her questions about her practices, and took notes."
Malik also points to inconsistencies between statements in Jacobs' Declaration and her deposition testimony to show that certain statements set forth in her Declaration were at Fishman's suggestion. Some of those inconsistencies are whether Jacobs recalled that an attorney was present with Malik at his interview, whether Malik spoke English well, and whether Jacobs made a red check mark "next to" versus "through" the question after receiving an oral response from the applicant. These alleged inconsistencies may be grounds for impeaching Jacobs or for attacking her credibility. However, the Court finds the inconsistencies identified by Malik are not sufficient for the Court to conclude that Fishman improperly coached Jacobs to make statements she did not actually recall and that were therefore false.
Malik next identifies excerpts from Jacobs' testimony as suggesting that parts of her Declaration were prepared jointly by her and Fishman.
Malik also alleges Fishman interfered with Jacobs' testimony at least twice. Specifically, during her deposition when questioned regarding how Fishman had prepared her sworn declaration, and also by asserting improper objections. Malik alleges Fishman shook his head no during Jacobs' testimony. Fishman states instead that he "furrowed his brow at opposing counsel" during an improper question. The Court has reviewed this portion of Jacobs' deposition transcript and notes that any signaling by Fishman was quickly curtailed by Malik's counsel. Furthermore, the Court finds the alleged signaling to have happened during a confusing question asking Jacobs where Fishman typed "it," which could have meant either the Declaration or Fishman's notes of the meeting.
Additionally, although Fishman did interpose an improper speaking objection at one point in the Jacobs' deposition to which Malik takes issue, Jacobs was allowed to answer and it appears to have been an isolated instance. There is otherwise no indication Fishman interfered with Jacobs' testimony.
In summary, none of the conduct by Fishman of which Malik complains constituted tampering with Jacobs' testimony or was otherwise improper conduct relative to Jacobs. Additionally, Malik offers no support or persuasive authority for the sanction he requests against the Government.
Malik next argues that two of Fishman's actions with respect to witness McIntosh are sanctionable conduct and thereby warrant dismissal of the Government's First Amended Complaint. Malik first takes issue with Fishman drafting an allegedly perjurious sworn statement for McIntosh in early August 2016, three months after her first deposition, when he was aware McIntosh had been attempting to blackmail Malik with such a threat. Malik also alleges that Fishman called McIntosh three days after her April 22, 2016 deposition, threatening her with perjury charges if she did not change her testimony.
The Court finds nothing improper about Fishman's drafting of the sworn statement for McIntosh to sign. Like the earlier May 2, 2016 call, Fishman arranged for a colleague to listen in on the August 2, 2016 call from McIntosh. The colleague's recollection of McIntosh's statements during the call are consistent with her sworn statement. McIntosh has not denied that she called Fishman to correct the record, or asserted that the statements in her sworn statement do not reflect what she actually said during the August 2, 2016 telephone call with Fishman.
Malik asserts that the sworn statement Fishman drafted for McIntosh contains statements that are demonstrably false. Malik has not, however, shown any particular statement in McIntosh's sworn statement to be perjurious or false. Malik offers as an example McIntosh's statement that Malik threatened her in a conversation in her house before her deposition. Malik contends this statement is false because at her second deposition McIntosh recited the conversation word for word, and it didn't contain any threat. While that is true, Malik fails to note that McIntosh consistently did maintain in her second deposition that she believed Malik did threaten her before her first deposition, even after repeated questions by Malik's counsel. During her second deposition, she testified that she understood Malik's statements to her before her deposition to be very careful about what she said at her deposition, to not go into detail, and to keep her mouth shut to be threats.
The Court also finds Fishman's alleged knowledge regarding the two McIntosh letters, which Malik characterizes as "blackmail" letters, does not make his drafting of the sworn statement for McIntosh sanctionable. The McIntosh letters are less than clear and in part illegible. While McIntosh states in them she is going to change her testimony and demands to see Malik, no other demand is made. McIntosh also states twice that she is going to tell how she lied. All these statements in the McIntosh letters are consistent with her sworn statement. If Fishman believed McIntosh when she told him she had lied during her first deposition because she had been threatened by Malik, it was appropriate for him to take her sworn statement to clarify the record.
Malik admits that "it is not certain" Fishman actually called McIntosh after her deposition to threaten her with perjury charges if she did not change her testimony. While McIntosh states she talked to "a lawyer" in one of the letters she sent to Malik in mid-May, McIntosh's testimony at her second deposition conflicts as to the identity of the specific lawyer she was referring in her letters.
In summary, the Court finds the actions of Fishman with regard to witnesses Jacobs and McIntosh were not improper or otherwise sanctionable conduct. Moreover, the sanctions which Malik seeks, dismissal of the Third Amended Complaint or striking the witnesses from testifying, are not supported by the facts or the law. The veracity of witnesses Jacobs and McIntosh, and any inconsistencies in their depositions and sworn statements, are proper for cross-examination and determination by the trier of fact.