UNITED STATES OF AMERICA, Plaintiff, v. DARAGH FINBAR HAYES, Defendant.
Case No. 2:24-cr-0280-DJC
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 17, 2025
ECF
CHI SOO KIM, UNITED STATES MAGISTRATE JUDGE
ORDER
On December 16, 2024, the Court issued an Order to Show Cause Why Sanctions or Other Appropriate Disciplinary Action Should Not Issue Against Assistant Federal Defender Andrew Francisco, counsel for Defendant Daragh Finbar Hayes. (ECF No. 50.) On December 18, 2024, Mr. Francisco timely filed his response to the Order to Show Cause. (ECF No. 51.) After careful consideration and review, the Court issues the following order sanctioning Mr. Francisco.
I. BACKGROUND
On October 10, 2024, Defendant Hayes was charged by indictment with a one
On October 25, 2024, Mr. Francisco filed a written motion to compel, which was initially filed under seal and then subsequently ordered to be filed unsealed with narrow redactions. Def. Mot. Compel (Sealed, ECF No. 16); 10/30/2024 Order (ECF No. 24); Def. Am. Mot. Compel (Unsealed and redacted, ECF No. 25). On November 15, 2024, a hearing was held on Defendant‘s motion to compel before Magistrate Judge Allison Claire, and Judge Claire denied Defendant‘s motion to compel without prejudice. 11/15/2024 Minutes (ECF No. 30).
On November 21, 2024, Mr. Francisco filed a written motion to unseal the motion to compel filеd at ECF No. 16, in which he stated the following:
Legislative history supports this narrower interpretation. In United States v. Harris, the court observed that the statute was designed to prevent the disclosure of specific identifying details, such as “names and addresses,” rather than general descriptors. 761 F. Supp. 409, 414 (D.D.C. 1991) (citing Congressman DeWine‘s remarks during the statute‘s enactment). . . .
The legislative history of
§ 3509(d) supports this interpretation. In United States v. Harris, the court examined the statute‘s background, citing Congressman DeWine‘s remarks that emphasized preventing the disclosure of names and addresses of child victims or witnesses. 761 F. Supp. At 414. This focus indicates that Congress aimed to shield specific identifying information, not to impose broad restrictions on all descriptive terms. Id. (“The legislative history indicates that Congress intended to shield the names and addresses of child victims and witnesses from public disclosure.“).The district court‘s analysis in Harris is consistent with the common practice of using initials in court filings involving minors.
Federal Rule of Criminal Procedure 49.1(a)(3) permits the use of a minor‘s initials in court documents to protect their identity.
Def. Mot. Unseal at 6, 10 (presenting argument regarding
On December 2, 2024, the government filed a written opposition to Defendant‘s motion to unseal, raising thе following argument:
Defense counsel repeatedly cites, and purportedly quotes, “United States v. Harris” at “761 F. Supp. 409 [] (D.D.C. 1991)” in support of his assertion that ECF 16 should not be restricted. ECF 32 at pg. 6, 10. The case at 761 F.Supp.409 does not stand for the proposition that defense counsel claims. In fact, that case is Harris v. Murray, a 1990 decision out of the Eastern District of Virginia which affirms the granting of a motion for summary judgment on an inmate‘s Section 1983 lawsuit. This cited case does not contain any of the information claimed in defense counsel‘s brief. The government attempted to locate the Harris case defense cites in its brief but was unable to find anything. For example, when the government searched the quote included on page 10
of the defense motion, allegedly from the Harris case, it returned 0 results on Westlaw and on Lexis.
U.S. Opp. at 4-5 (ECF No. 36).
On December 5, 2024, Mr. Francisco filed a written reply to the government‘s opposition, responding to the argument regarding United States v. Harris as follows:
Defense counsel acknowledges the government‘s observation that United States v. Harris does not discuss the legislative history of
18 U.S.C. § 3509(d) and clarifies that United States v. Broussard, 767 F. Supp. 1536, 1542 (D. Or. 1991), is the district court case from which this material is quoted. This inadvertent citation error does not affect the substance of the defense‘s position that thе legislative history supports a far narrower interpretation of§ 3509(d) than the government asserts.
Def. Reply at 8 n.3 (ECF No. 37).
On December 9, 2024, this Court held a hearing on Defendant‘s motion to unseal with Mr. Francisco appearing for Defendant and Assistant United States Attorney Christina McCall appearing for the government. (ECF No. 41.) At that hearing, the Court asked Mr. Francisco to explain his citation and quotation of “United States v. Harris, 761 F. Supp. 409, 414 (D.D.C. 1991)” in his motion to unseal and in his reply responding to the government‘s argument regarding “United States v. Harris, 761 F. Supp. 409, 414 (D.D.C. 1991).” The following exchange occurred at the December 9, 2024 hearing:2
THE COURT: Good afternoon. The Court has carefully reviewed the briefing that‘s been submitted. We‘re here for Defendant‘s motion to unseal, which is at ECF Number 32.
I have specific issues and questions I want to address. The first issue that I want to address is that in the Government‘s opposition, the Government points out that a case that the Defense cited at least twice in its motion to unseal at page 6 and 10, United States v. Harris, 761 F. Supp. 409, 414 (District of D.C. 1991), that that case does not exist. The Defense response to this in Footnote 3 of its reply was “Defense counsel acknowledges the Government‘s observation that United States v. Harris does not discuss the legislative history of 18 United States Code, Section 3509(d), and clarifies that United States v. Broussard, 767 F. Supp. 1536 at 1542 (District of Oregon 1991), is the district court case from which this material is quoted. This inadvertent citation error does not affect the substance of the Defense‘s position that the legislative history supports a far narrower interpretation of Section 3509(d) than the Government asserts.”
So here‘s the question I have. In the Defense motion on page 10, the case that‘s cited, United States v. Harris, it‘s cited for this sentence -- and this is on page 10 of the motion: “The legislative history indicates that Congress intended to shield the names and addresses of child victims and witnesses from public disclosure.”
And then in the Defense reply, it states that the correct case from which this material is quoted is the Broussard case. Where is this quoted language in the Broussard case?
MR. FRANCISCO: Your Honor, I believe that material is on page 1542. THE COURT: Okay. I‘m going to hand you a copy of that case because I‘ve actually read it, and I don‘t see it anywherе on that case. So I‘m going to give you a moment to take a look and see if there‘s something I‘m missing. I‘m going to ask the Government if you need a copy of Broussard as well?
MS. McCALL: Thank you, Your Honor.
(Counsel reviewing case.)
MR. FRANCISCO: My apologies, Your Honor. There are two Broussard opinions that were filed in short succession in 1991 that were dealing with the recently-passed Section 3509 – what now has become Section 3509. I‘m not seeing this particular quote in the copy that the Court has presented.
THE COURT: So the copy that I presented is the one that‘s cited in the reply brief at 767 F. Supp. 1536, 1542 (District of Oregon 1991). The Court also read the second Broussard case. That sentence that is quoted in the Defense brief is not in either case.
I also did a similar search that the Government referenced in its opposition, which is I searched for that quotation and did not find it anywhere in any case, not just the Broussard case that the Defense cites or in the second Broussard case that the Defense did not cite but that the Court found.
Broussard has a very different sentence in it, and that is, “The legislative history indicates that Congress was concerned about the increase in child abuse cases nationwide, and in particular, statistics revealing a high incidence of child abuse on Indian reservations.” This is at 767 F. Supp. 1536 -- I‘m sorry -- at page 1539.
Sо here‘s my question. I want to try to understand how the Defendant‘s response in Footnote 3 of its reply, how it‘s an inadvertent citation error. It appears to the Court to be a hallucinated or a fictitious case. The case name is not correct. It‘s not United States v. Harris. The case citation is not correct. The district court identified is not correct. It‘s not the District of D.C. And the year is not correct. So I want to try to understand how it‘s an inadvertent citation and how the Defense states that that quoted language comes from Broussard.
MR. FRANCISCO: Certainly -- certainly, Your Honor, and my apologies for the confusion. I think at the outset, Your Honor, Broussard and the inadvertent citation to Harris were for district court cases. They were proposed in this motion to highlight the -- the persuasive value of the legislative history. And I -- I sincerely apologize for the lack of attention to those citations. However, I‘d submit that the substance absolutely supports the Defense position. And the reference to Broussard was merely for a shorthand reference to the legislative history.
THE COURT: So Broussard does talk about the legislative history at that section and states, “What little legislative history exists indicates that the sole purpose of this statute was to provide the district courts with tools to make a child‘s experience with the criminal justice system less traumatic and to limit the child‘s exposure to the public.”
There‘s also a reference later saying, “The legislative history, although scant, is helpful in describing the confidentiality provision. Congressman DeWine explained that the bill makes it easier for a child to testify in court. It forbids the release of the witness‘s name and address.” It doesn‘t appear that Broussard actually supports the Defense argument,
but the Court is also concerned that it appears that the actual citation in the Defense filing appears to be a fictitious case. But you‘re saying there is actually a United States v. Harris case?
MR. FRANCISCO: Well, there is a United States v. Harris case, Your Honor. The Harris case, I -- the Defense agrees with the Government that the Harris case does not support the position regarding legislative history.
THE COURT: Are you talking about the Harris case that the Government identified, which is a civil case -- Harris v. Murray at 761 F. Supp. 409 (Eastern District of Virginia 1990)?
MR. FRANCISCO: No, Your Honor. There are – there are many United States v. Harris‘s cases. I myself recently had one. And --
THE COURT: I‘m sorry. So, Mr. Francisco, are you saying there‘s a different United States v. Harris case that deals with this specific statutory provision? So you probably are getting that thе Court is concerned that there was a citation to a hallucination, like a case that‘s not actually real. It has the markings of a real case because it has a case name and an F. Supp. and a district court, but all of those are inaccurate here.
MR. FRANCISCO: But, Your Honor, the substance is accurate and the substance was what I had directed the Court‘s attention to in my initial filing. And I do apologize for the citation error, Your Honor, the misquote. The -- that material never should have been quoted, I will concede. I would -- I would also add that that material does not require a quotation. There‘s nothing authoritative that the quote lends to the Court‘s consideration. Again, Your Honor, it is a direction to review the legislative history which is what I had hoped the Government and the Court would consider in this case, specifically Congressman DeWine‘s remarks.
THE COURT: Okay. Let me turn to the Government to see if they have any response.
MS. McCALL: Your Honor, we share the Court‘s concern about citing and quoting in multiple places in the brief something that doesn‘t exist. And even the Broussard case doesn‘t stand for the proposition that the Defense is arguing.
So with that, we‘d submit. I mean, of course “Harris” is a common last name, but inventing a case, inventing a citation, and inventing a quote is I think more than inadvertence.
THE COURT: So -- but -- the Court agrees. I don‘t -- I don‘t understand how this could happen. It‘s – inadvertent citation errors are things like the wrong page is cited or something like that. Here, every part of the citation is incorrect. And then the case that‘s identified as being the correct case in the Defense reply in Footnote 3, that is also not correct, and the quoted language doesn‘t appear in there and Broussard doesn‘t actually -- I read the whole case. I saw the second case as well. It doesn‘t stand for the propositions that the Defense argues and the quoted language is different, so that is very concerning to the Court.
It‘s even more concerning because the issue was raised in the opposition which specifically stated thе case is not correct. The quoted language is not there. The quoted language -- I searched for it -- is not found in any case. And the Defense‘s response to that does not appear to be accurate and it appears to be misleading and that is very concerning to the Court.
So let me turn now -
- MR. FRANCISCO: If I may briefly, Your Honor, --
THE COURT: Yes, briefly.
MR. FRANCISCO: -- for the record? In drafting my reply to the Government‘s opposition, counsel for the Defense‘[s] intention was to redirect the discussion to the legislative history. In the main body of the text, counsel for the Defense provided the citation with the legislative history which I submit, Your Honor, is in accord with the original filing, the opening brief in this case, ECF 37 at page 8, the second paragraph, where the Defense states that “The legislative history further supports the Defense‘s interpretation of 3509(d),” which is that the Defense interpretation is far narrower than the Government‘s. And specifically it was the portion from Broussard discussing names and addresses as quoted on the House floor by the member from Ohio, Congressman DeWine.
The Defense counsel sincerely apologizes for the confusion and the poor attempt at remedying the issue, Your Honor.
THE COURT: So I understand the Defense argument, but are you acknowledging and agreeing that the case cited in your opening brief on pages 6 and 10, that that is not a real case and that the language quoted is not actually in Broussard?
MR. FRANCISCO: Your Honor, I concede that the citation in the Defense‘s opening brief does not contain reference to 3509(d) or legislative history.
THE COURT: Okay.
MR. FRANCISCO: That was -- that was cited in error, Your Honor.
THE COURT: Okay. And do you also concede that it is not a real case -- what you cited?
MR. FRANCISCO: Your Honor, I can‘t speak to that. I can speak to that it was cited in error.
THE COURT: Okay. So let‘s turn to some other issues. Let me think on this more. Because I think if you put in that citation, you will see that it is not a real case, so let me think more about that response.
12/9/2024 Hearing on Defendant‘s Motion to Unseal, Transcript at 2:14 - 9:20 (ECF No. 48).
At the December 9 hearing, the Court denied Defendant‘s motion to unseal on multiple grounds. The Court concluded that the motion was an improper motion to reconsider, raising arguments previously raised, considered, and denied by Judge Claire. 12/9/2024 Hrg. Tr. 9:21-11:10 (reviewing Def. Mot. to Compel and Reply (ECF Nos. 25, 29); 10/28/2024 Minute Order (denying without prejudice Defendant‘s request to seal in entirety ECF No. 16) (ECF No. 19); and 10/30/2024 Order (ordering Defendant to file a redacted version of his motion to compel that redacted the following from ECF No. 16: “all references to Child Victim 1‘s gender, including pronouns, and references to Child Victim 1‘s relationship to defendant, including but not limited to references at ECF No. 16 at pp. 1:25 and 10:12 and ECF No. 16-3 at pp. 1 (final paragraph) and 4 (final paragraph).“) (ECF No. 24)). The Court also rejected Defendant‘s arguments regarding the stipulated protective order that both Defendant and the government signed and submitted to the Court, and which the Court entered on November 25, 2024. 12/9/2024 Hrg. Tr.11:11-18:18 (reviewing Stip. Prot. Order (ECF No. 35) and authority cited by Defendant). Defendant conceded that the stipulated protective order would require redacting the relationship identification language that Defendant now sought to unseal, and further conceded
The Court also firmly rejected the defense arguments that “the Clerk of Court‘s conduct was improper and that the prosecution improperly influenced court staff.” Id. at 20:7-11; see id. at 20:7-23:18. The Court concluded that the Clerk of Court‘s actions to temporarily seal a document that a party has identified as containing information that must be sealed, while the sealing issue could be addressed by the parties and the court, was proper and the correct course of conduct. Id. at 21:2-23:18. The Court further concluded that Defendant‘s arguments regarding Local Rule 140(e) were incorrect, “demonstrat[ing] a misunderstanding of that Local Rule,” and in this case, would have revealed the identity of the child victim, causing potential harm to the child. Id. at 21:2-23:18.
Finally, the Court firmly rejected Defendant‘s accusations that the “Clerk acted as an agent for the prosecution” in temporarily sealing Defendant‘s motion to compel—conduct which the Court has already found was proper and the correct course of conduct— as lacking merit, as inflammatory, and for “undermin[ing] the integrity of the court system.” Id. at 23:19-27:7.
Almost one week later, on Sunday, December 15, 2024 at 8:54 p.m., Defendant filed a “Notice of Errata: Docket 32: Notice of Motion; Motion to Unseal ECF No. 16 and Docket 37: Reply to Government‘s Opposition to Motion to Unseal ECF No. 16.” (ECF No. 47.) This Notice of Errata was submitted by Federal Defender Heather Williams3 and Mr. Francisco, addressing “the misstatements, erroneous citations, and unsupported quotations contained within these filings, and any oral arguments based on them, and seeks to clarify the record to ensure accuracy and integrity in these proceedings.” Id. at 1.
On Monday, December 16, 2024 morning, the Court issued its Order tо Show Cause (“OSC“). (ECF No. 50.) Mr. Francisco timely filed his response to the Order to Show Cause on December 18, 2024. (ECF No. 51.)
II. LEGAL STANDARDS
“Within the federal system, each district court is authorized to govern and discipline its own bar.” Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1198 (9th Cir. 1999). The district court may issue sanctions for violating its local rules, and also under its inherent authority. See Fink v. Gomez, 239 F.3d 989, 991-92 (9th Cir. 2001); Zambrano v. City of Tustin, 885 F.2d 1473, 1480 (9th Cir. 1989). Before imposing sanctions on an attorney, the court must provide the attorney with notice and an opportunity to be heard. Weissman, 179 F.3d at 1198. A separate sanctions hearing is not required when the attorney is given the opportunity to respond in writing. Pac. Harbor Cap., Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000). “The opportunity to brief the issue fully satisfies due process requirements.” Id. (citing Resolution Trust Corp. v. Dabney, 73 F.3d 262, 268 (10th Cir.1995); Toombs v. Leone, 777 F.2d 465, 472 (9th Cir.1985)).
Rule 3.3 of the Rules of Professional Conduct of the State Bar of California requires candor to the tribunal. Rule 3.3(a)(1) provides that a lawyer shall not: “knowingly make a fаlse statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Rule 3.3(a)(2) provides that a lawyer shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly misquote to a tribunal the language of a book, statute, decision or other authority.” Rule 3.3(a) “appl[ies] to all lawyers, including defense counsel in criminal cases.” Cal. Rules of Pro. Conduct r. 3.3 cmt. 4 (State Bar of Cal. 2023). Rule 3.1(a)(2) provides that a lawyer shall not “present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.”
Eastern District of California Local Rule 184(a) provides: “Discipline. In the event any attorney subject to these Rules engages in conduct that may warrant disciplinе or other sanctions, any Judge or Magistrate Judge may initiate proceedings for contempt under
III. DISCUSSION
“Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court‘s time is taken from other important endeavors. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal prоfession and the American judicial
Submitting fictitious cases and quotations to the court “degrades or impugns the integrity of the Court” and “interferes with the administration of justice” in violation of Local Rule 180(e), and violates California Rules of Professional Conduct 3.1(a)(2), 3.3(a)(1), and 3.3(a)(2). See E.D. Cal. L.R. 180(e) (requiring compliance with the California Rules of Professional Conduct); Cal. Rules of Pro. Conduct r. 3.3(a)(1) (lawyer shall not “knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer“); Cal. Rules of Pro. Conduct r. 3.3(a)(2) (lawyer shall not “knowingly misquote to a tribunal the language of a book, statute, decision or other authority“); Cal. Rules of Pro. Conduct r. 3.1(a)(2) (lawyer shall not “present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.“). “A fake opinion is not ‘existing law’ and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law. An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.” Mata, 678 F. Supp. 3d at 461 (citing Salovaara v. Eckert, 222 F.3d 19, 34 (2d Cir. 2000)) (internal footnote omitted). The California Rules of Professional Conduct at issue are similar to other rules that courts have found were violated by the submission of fictitious legal authority. Compare Cal. Rules of Pro. Conduct r. 3.3(a)(1), with N.Y. Rules of Pro. Conduct r. 3.3(a)(1) addressed in Mata, 678 F. Supp. 3d at 460; compare Cal. Rules of Pro. Conduct r. 3.1(a)(2), with
The Court finds that Mr. Francisco submitted a fictitious or non-existent case and quotation in his written motion to unseal filed on November 21, 2024; knowingly made inaccurate and misleading statements in his written reply filed on December 5, 2024 to the government‘s opposition that expressly raised the fictitious case and quotation; and knowingly made inaccurate and misleading statements at the December 9, 2024 hearing. The Court further finds that Mr. Francisco‘s inaccurate and misleading statements were not inadvertent as claimed, but knowing and made in bad faith. Despite being provided multiple opportunities to candidly acknowledge and correct his errors as required under his duty of candor to the court, Mr. Francisco unfortunately failed to do so. Though the Court accepts Mr. Francisco‘s apology, his post-hoc acknowledgment of the fictitious case and quotation are inadequate and demonstrate that his conduct was knowing and deliberate. See Francisco OSC Resp. (ECF No. 51).
A. Procedural Requirements
At the December 9, 2024 hearing, the Court directly expressed its concern and asked Mr. Francisco about his citation of a “hallucinated” or non-existent case, informed Mr. Francisco that the Court was not able to find the case or quotation Mr. Francisco cited, and asked Mr. Francisco about the reply he filed responding to the
B. Fictitious Case and Quotation in Motion
In his motion to unseal, Mr. Francisco cited eight cases, six of which were cited in near string citation form. See Def. Mot. Unseal at 6, 10, 11. The primary case upon which Mr. Francisco relied— analyzing, quoting, describing the district court‘s analysis, and addressing in two different places in the motion— was “United States v. Harris, 761 F. Supp. 409, 414 (D.D.C. 1991).” See Def. Mot. Unseal at 6, 10.
Unfortunately, “United States v. Harris, 761 F. Supp. 409, 414 (D.D.C. 1991)” is not a real case. The citation has all the markings of a hallucinated case created by generative artificial intelligence (AI) tools such as ChatGPT and Google Bard that have been widely discussed by courts grappling with fictitious legal citations and reported by national news outlеts. See Mata, 678 F. Supp. 3d 443 (leading case sanctioning counsel for fictitious case citations generated by ChatGPT); Benjamin Weiser, Here‘s What Happens When Your Lawyer Uses ChatGPT, N.Y. TIMES (May 27, 2023), https://www.nytimes.com/2023/05/27/nyregion/avianca-airline-lawsuit-chatgpt.html; Erin Mulvaney, Judge Sanctions Lawyers Who Filed Fake ChatGPT Legal Research, WALL. ST. J. (June 22, 2023), https://www.wsj.com/articles/judge-sanctions-lawyers-who-filed-fake-chatgpt-legal-research-9ebad8f9; Pranshu Verma and Will Oremus, These lawyers used ChatGPT to save time. They got fired and fined., WASH. POST (Nov. 16, 2023), https://www.washingtonpost.com/technology/2023/11/16/chatgpt-lawyer-fired-ai/. Similar to other fictitious case citations created by generative AI tools, the fictitious “United States v. Harris” case looks like a real case with a case name; a citation to the Federal Supplement, which is the reporter that publishes opinions from federal district courts; identification of a district court; and the year for the decision. Compare Def. Mot. Unseal at 6 & 10, with Mata, 678 F. Supp. 3d at 451, 454 (fictitious case cited in filing did not address the claimed subject matter and had the wrong parties, the wrong court, and the wrong year identified).
In actuality, the citation “761 F. Supp. 409” is for a different case— Harris v. Murray, a decision from the Eastern District of Virginia that issued on July 25, 1990. Harris v. Murray is a civil case brought pursuant to
Mr. Francisco now concedes that “United Stаtes v. Harris” is not a real case; Harris v. Murray is a different case from the Eastern District of Virginia in 1990; and Harris v. Murray “has nothing to do with”
Unlike other cases where counsel and litigants have admitted, sometimes reluctantly, that the fictitious citations and quotations were created by generative AI,5 Mr. Francisco states that he “did not use and ha[s] never used AI (artificial intelligence) to draft any of my motions.” Francisco OSC Resp. at 3. Instead, Mr. Francisco states that he “hastily” drafted the portion of his motion discussing the legislative history of
The Court finds this response inadequate and not credible. Though Mr. Francisco admits that he drafted his filing with the fictitious case and quotation, he fails to explain where or how he found or created the fictitious case and quotation. See Thomas v. Pangburn, 2023 WL 9425765, at *4 (S.D. Ga. Oct. 6, 2023) (finding inadequate pro se plaintiff‘s responses to orders to show cause, which included apology for “unintentional mistakes” and “unfortunate error” without explaining source of fictitious citations). Regardless of the source of the fictitious case and quotation, an attorney with almost six years of experience such that case citations are “second nature” to him (Francisco OSC Resp. at 2-3), knows how to conduct legal research, retrieve cases, and accurately cite those cases.6 The Court need not make any finding as to whether Mr. Francisco actually used generative AI to draft any portion of his motion and reply, including the fictitious case and quotation. See Grant v. City of Long Beach, 96 F.4th 1255, 1256-57 (9th Cir. 2024) (without determining source of two non-existent case citations and misrepresentation of thirteen cases, striking
C. Reply and Hearing Responses to Fictitious Case and Quotation
The Court ultimately finds that Mr. Francisco made knowing and willful misrepresentations with the intent to mislead the Court, which violated the standards of professional conduct, including the duty of candor to the court, and demonstrates bad faith. Mr. Francisco‘s first opportunity to candidly acknowledge and correct the fictitious case and quotation was in his written reply filed in response to the government‘s opposition that directly raised the fictitious case and quotation. But instead of candidly acknowledging and correcting his errors, Mr. Francisco filed with the Court the following two-sentence response in а footnote in his written reply: “Defense counsel acknowledges the government‘s observation that United States v. Harris does not discuss the legislative history of
This response was not accurate and was misleading. It failed to acknowledge that the United States v. Harris case is fictitious, failed to acknowledge that the actual case is the Harris v. Murray case, and failed to acknowledge that the quotation is not from any case. Instead, Mr. Francisco stated in his reply that an “inadvertent citation error” was made and the quotation is from a different case, United States v. Broussard, 767 F. Supp. 1536, 1542 (D. Or. 1991). This, too, was misleading, as the language Mr. Francisco quoted does not appear anywhere in Broussard.
Though Mr. Francisco reviewed Broussard multiple times before filing his motion to unseal, including on October 26, November 13, and November 14, 2024, he did not refer to or cite Broussard in his motion to unseal. See Francisco OSC Resp., Exh. B at 2, 9, 11. That was likely with good reason. Broussard does not suppоrt Mr. Francisco‘s motion to unseal a total of eight (8) words in his motion to compel that described Child Victim 1‘s relationship to Defendant Hayes and Child Victim 1‘s gender, which had been properly redacted by Judge Claire. See 10/30/2024 Order at 3 (ECF No. 24) (identifying specific location of language to redact). Broussard‘s discussion of
Though the Errata acknowledged that United States v. Harris and the quotation were non-existent, acknowledged that Mr. Francisco‘s reply response was not accurate, and offered corrections to Mr. Francisco‘s motion and reply, it was inadequate. See Def. Errata. The Errata did not provide any explanation for the fictitious case and quotation; failed to disclose that Mr. Francisco was aware that United States v. Harris was fictitious, which Mr. Francisco later admitted in his response to the Order to Show Cause; and did not acknowledge that Broussard did not support Mr. Francisco‘s motion to unseal, which, as described above, Mr. Francisco also later admitted. See Def. Errata; Francisco OSC Resp. at 3, 4, 5 (“I was aware at that time that Harris was an incorrect citation and did not support my argument.“).
As established by his response to the Order to Show Cause, Mr. Francisco filed his reply on December 5, 2024, after reviewing the government‘s opposition, the actual Harris v. Murray case, and the United States v. Broussard case. Francisco OSC Resp. at 3. He reviewed the actual Harris v. Murray case on December 3, 2024. Francisco OSC Resp. at 3 & Exh. B at 2 (ECF No. 51-2). On December 3, 4, and 5, 2024, Mr. Francisco also reviewed the Broussard case he cited in his reply. Francisco OSC Resp. at 3 & Exh. B at 2. The Court therefore finds that before Mr. Francisco filed his reply on December 5, 2024, he knew that (1) the “United States v. Harris, 761 F. Supp. 409, 414 (D.D.C. 1991)” “case” he cited and quoted in his motion to unseal was not a real case; (2) the real case was Harris v. Murray, 761 F. Supp. 409 (E.D. Va. 1990); (3) the Harris v. Murray case was a civil case that does not address, refer to, or have anything to do with
The Court does not credit Mr. Francisco‘s statement that “I had not realized the quotation [I] attributed to Broussard was also non-existent.” Francisco OSC Resp. at 5. This is not credible given the express arguments made by the government in its opposition that this quotation was not found in any case in searches conducted in both Westlaw and Lexis. See Govt. Opp‘n at 4-5. It is also significant that the government raised its arguments in a written filing that Mr. Francisco had three days to review, research and respond to, and that Mr. Francisco responded in writing. The government‘s arguments were not made for the first time in court during a hearing. Mr. Francisco reviewed the government‘s written opposition arguments; he did research in response to the government‘s arguments about his fictitious case and fictitious quotation, including reviewing the real Harris v. Murray case; and he reviewed United States v. Broussard on December 3, 4, and 5— every day between when the government‘s opposition was filed on December 2 and when Mr. Francisco filed his reply on December 5, 2024. See Francisco OSC Resp. at 3 & Exh. B at 2. It is simply not credible that Mr. Francisco
In addition, the larger context in which this issue arises further demonstrates that Mr. Francisco‘s post-hoc statements are not credible. Arguments regarding citation to a non-existent case and non-existent quotation are serious arguments to raise against opposing counsel in any written court filing, especially when such arguments have recently and frequently led to sanctions that have made national news. These arguments were, in some ways, more serious here because they were made in a federal criminal case by a federal prosecutor (an Assistant United States Attorney) against an Assistant Federal Defеnder, two repeat players in federal district court. Unlike private civil litigation where counsel may never cross paths, or only cross paths for one case in one court, Assistant United States Attorneys and Assistant Federal Defenders often practice exclusively, or near exclusively, within one federal judicial district. As a result, criminal Assistant United States Attorneys and Assistant Federal Defenders appear regularly and repeatedly on different criminal cases together and in front of the same judges of the district court. Such a serious allegation challenging opposing counsel‘s credibility becomes that much more significant given the high likelihood that counsel on both sides will encounter each other again in the same district court on other cases, and the high likelihood that counsel will even appear again before the same judge.7 For all of these reasons, the Court does not credit Mr. Francisco‘s post-hoc statements regarding the quotation.
The Court concludes that Mr. Francisco‘s written reply was knowingly made to mislead the Court, violating his duties of professional responsibility and constituting evidence of bad faith.
At the December 9, 2024 hearing, Mr. Francisco had a second opportunity to candidly acknowledge and correct his errors. Unfortunately, Mr. Francisco persisted in his misrepresentations and made matters worse. In response to the Court‘s questions, Mr. Francisco continued to assert that the quotation was from Broussard. 12/9/2024 Hrg. Tr. 3:8-4:10. After the Court provided Mr. Francisco with a hard copy of Broussard and Mr. Francisco was not able to locate the quotation, he suggested that the quotation was from a second Broussard case. Id. Unfortunately for Mr. Francisco, the Court had also reviewed this second Broussard case before the hearing, United States v. Broussard, 767 F. Supp. 1545 (D. Or. 1991) (”Broussard II“), and informed Mr. Francisco that Broussard II did not contain the quotation. Id. In fact, Broussard II concluded that pursuant to
Mr. Francisco ultimately acknowledged in his OSC response that Broussard II does not contain the quotation, and does not address the issues raised in his filings. Francisco OSC Resp. at 2.
The Court then read out loud portions of Broussard that addressed
Mr. Francisco responded, “Well, there is a United States v. Harris case, Your Honor. The Harris case, I -- the Defense agrees with the Government that the Harris case does not support the position regarding legislative history.” Id. at 6:6-9.
The Court then asked whether Mr. Francisco was referring to the Harris v. Murray case, and Mr. Francisco responded that he was not referring to Harris v. Murray and then stated that “There are there are many United States v. Harris‘s cases.” Id. at 6:10-14.
The Court asked Mr. Francisco a fourth time, “are you acknowledging and agreeing that the case cited in your opening brief on pages 6 and 10, that that is not a real case and that the language quoted is not actually in Broussard?” Id. at 9:3-6. Mr. Francisco continued to refuse to acknowledge that United States v. Harris was not a real case, and instead made the following evasive statement: “I concede that the citation in the Defense‘s opening brief does not contain reference to 3509(d) or legislative history.” Id. at 9:7-9.
The Court then asked Mr. Francisco a fifth and final time, “do you also concede that it is not a real case -- what you cited?” Id. at 9:13-14. Mr. Francisco continued his denial and evasion, stating: “Your Honor, I can‘t speak to that. I can speak to that it was cited in error.” Id. at 9:15-16.
Not only did Mr. Francisco fail to acknowledge and correct his errors at the hearing, he made matters worse by repeatedly refusing to admit that United States v. Harris was non-existent despite knowing that it was non-existent. The Court gave Mr. Francisco several chances to tell the truth at the hearing, providing five distinct opportunities to respond to the Court‘s direct questions, and each time he knowingly persisted in his misrepresentations to the Court.
In his OSC response, Mr. Francisco admits that he reviewed the real Harris v. Murray case on December 3 after reviewing the government‘s opposition raising the non-existent United States v. Harris case and quotation, and that at the time of the December 9 hearing, he “was aware at
The Court can only conclude that Mr. Francisco‘s statements at the December 9, 2024 hearing were made knowingly with the intent to mislead the Court, and they constitute evidence of bad faith.
D. Sanctions
Submitting fictitious cases and quotations to the Court, and making misrepresentations to the Court to insist that a non-existent case is real, “degrades or impugns the integrity of the Court” and “interferes with the administration of justice” in violation of Local Rule 180(e). Its harms go far beyond violation of this district court‘s Local Rules. See Mata, 678 F. Supp. 3d at 448-49 (“It promotes cynicism about the legal profession and the American judicial system.“). The Court finds that Mr. Francisco violated Local Rule 180(e) by violating California rules of professional conduct, engaging in “conduct that degrades or impugns the integrity of the Court,” and engaging in conduct that “interferes with the administration of justice.” E.D. Cal. L.R. 180(e); see Cal. Rules of Pro. Conduct r. 3.1(a)(2), 3.3(a)(1), 3.3(a)(2). As described above, the Court further finds that Mr. Francisco‘s conduct was in bad faith. This Court also finds that there is no indication or suggestion that Defendant Hayes or any other individual from the Federal Defender‘s Office was involved in or responsible for the conduct at issue besides Mr. Francisco himself.
The Court has carefully considered sanctions, including thoroughly researching how other courts have addressed similar misconduct. Courts across the country have issued sanctions against attorneys and pro se parties for submitting fictitious case citations, fictitious quotations, and related misrepresentations to the court, including (1) monetary sanctions (Mata, 678 F. Supp. 3d at 449, 466 (finding bad faith and issuing $5,000 monetary sanction jointly and severally against individual attorneys and their law firm for citing multiple non-existent cases in opposition brief and submitting fabricated excerpts from these non-existent cases in response to a court order); Kruse v. Karlen, 692 S.W.3d 43, 52, 54 (Mo. Ct. App. 2024) (sanctioning pro se party $10,000 in attorney‘s fees and granting motion to strike and dismissing appeal where pro se party violated Missouri Rules of Appellate Procedure, including submitting 22 fictitious case citations in his brief, without a finding of bad faith); Smith v. Farwell, 2024 WL 4002576 at *7 (for four fictitious case citations in opposition briefs, sanctioning plaintiff‘s counsel $2,000 for violating an attorney‘s duty to undertake a reasonable inquiry under Massachusetts Rules of Professional Conduct 11 and 7, without a finding of bad faith); Scott v. Federal Nat. Mortg. Ass‘n, 2023 WL 6935586, at *4 (Me. Super. June 14, 2023) (for fabricated case citations and quotations in brief, sanctioning pro se plaintiff to pay defense counsel‘s reasonable attorney fees, costs, and expenses incurred for violating Maine Rule of Civil Procedure Rule 11 and to deter other litigants from “blindly” relying on AI-generated filings)); (2) striking the filing containing the fictitious citations (Grant, 96 F.4th at 1256-57 (without any findings regarding the source, striking entire opening brief containing citation to two non-existent cases and misrepresentation of the facts and holdings of thirteen cases); Will of Samuel, 206 N.Y.S.3d 888, 891 (N.Y. Sur. 2024) (striking pleading that cited five non-existent cases and scheduling hearing to determine if economic sanctions should be imposed)); (3) requiring written notification
The Court is also mindful that “any sanction imposed must be proportionate to the offense and commensurate with principles of restraint and dignity inherent in judicial power,” including considering “the usefulness of more moderate penalties before imposing a monetary sanction.” Zambrano, 885 F.2d at 1480. For example, the Court considered whether a “lecture in open court” would be sufficient, id. at 1480 n.24, and concluded this would be insufficient given that the Court repeatedly gave Mr. Francisco multiple opportunities in open court to be candid. Despite knowing that United States v. Harris was a non-existent case for at least one week before the hearing when the government expressly raised this argument in its opposition, Mr. Francisco deliberately and repeatedly made misrepresentations in open court and refused to admit United States v. Harris was not a real case. In addition, Mr. Francisco has not adequately explained the source of the fictitious case. See Francisco OSC Resp. at 3; Def. Errata.
In addition, despite Mr. Francisco‘s apologies and promises to follow remedial measures, see Def. Errata at 5 and Francisco OSC Resp. at 6, Mr. Francisco‘s appearance before the undersigned on a different criminal case after the OSC issued on December 16 and after Mr. Francisco responded to the OSC on December 18, further confirms that more moderate penalties are insufficient. See United States v. Fahlgren, No. 2:24-cr-0213-WBS (E.D. Cal.), 1/3/2025 Order Granting Motion for Protective Order at 1-2 (ECF No. 23). As described in a January 3, 2025 order issued in United States v. Fahlgren, on December
Finally, the Court has approached this issue with deliberation, taking the time to carefully review the full record, including reviewing the transcript from the hearing rather than relying on the Court‘s memory, conducting legal research, and considering the full range of sanctions and disciplinary measures before reaching its decision. The Court is also mindful that while federal and state courts across the country have unfortunately encountered this issue, this is the first time it has arisen in this federal district, raising the importance of educating and deterring the larger bar from repeating similar conduct.
IV. CONCLUSION
Therefore, the Court concludes that $1,500 in monetary sanctions issued against Mr. Francisco personally are proportionate to his conduct, while also serving as an effective deterrent to Mr. Francisco and other members of the bar, and ensuring no possible impact or prejudice on Mr. Francisco‘s client, Defendant Hayes.
For the reasons stated above, the Court orders the following sanctions for viоlation of Local Rule 180(e) and pursuant to its inherent authority:
- Assistant Federal Defender Andrew Francisco, defense counsel, is personally sanctioned in the amount of $1,500. Within 21 days of the date of this Order, Mr. Francisco shall pay these sanctions to the Clerk of Court. The case number and a copy of this Order should be included with payment.
- The Court orders the Clerk of Court to serve a copy of this order on the District of Columbia Bar, of which Mr. Francisco is a member (DC Bar No. 1619332), and the State Bar of California.
- The Court orders the Clerk of Court to serve a copy of this order on all the district judges and magistrate judges in this district.
Dated: January 17, 2025
CHI SOO KIM
UNITED STATES MAGISTRATE JUDGE