                   UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 01-10974



PIEDAD GONZALES,

          Plaintiff

VERSUS

BRIAN C. ENGLAND, Garland Police Officer, Badge No. 267,

          Defendant - Appellee

VERSUS

DOUGLAS R. LARSON,

          Movant - Appellant

VERSUS

CITY OF GARLAND, TEXAS,

          Movant - Appellee




          Appeal from the United States District Court
               for the Northern District of Texas
                        No. 3:96-CV-2673

                           July 15, 2002


Before KING, Chief Judge, PARKER and CLEMENT, Circuit Judges.




                                 1
PER CURIAM:*

     Movant-appellant Douglas C. Larson (“Larson”), the attorney

for the   plaintiff    in    the   underlying    lawsuit,   appeals   from a

sanctions order issued against him by the magistrate judge and

affirmed by the district court.            The magistrate judge sanctioned

Larson because she determined that Larson acted in bad faith in

subpoenaing one of the defendant’s attorneys to testify in the

underlying lawsuit. Finding that the issuance of the sanctions

order was an abuse of discretion, we REVERSE.

I.   INTRODUCTION

     The sanctions issue springs from the actions taken by Larson

in representing his client, Piedad Gonzales, during the course of

the underlying lawsuit.        Thus, we briefly summarize the facts of

the underlying case.

     Piedad    Gonzales     sued   Defendant-Appellee   Brian   C.    England

(“England”), a Garland City Police Officer, for civil rights

violations arising from the stop of her vehicle and subsequent

arrest.   She claimed that England improperly stopped her vehicle

based on a computer report from an undetermined and unverified

source that the vehicle she was driving had been stolen.

     During pre-trial proceedings, Larson, on behalf of his client,

filed a motion for sanctions in the district court against England


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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and England’s attorney, Ronald Jones.                Larson claimed that Jones

was not    producing   all   of   the       fields    of    relevant    information

available through the police department’s computer records and was

thus engaged in a “cover-up” of England’s actions.                     The district

court denied the motion.

     On September 30, 1998, James Jordan entered an appearance as

lead attorney    for   England.         Ronald    Jones,      the   previous     lead

counsel,    subsequently     played         a   less       significant    role    in

representing England.1       On October 20, 1998, Larson designated

Jones as a potential trial witness pursuant to Fed. R. Civ. P. 26.

The disclosure filed with the district court stated that “Mr.

Jones, as a Garland City Attorney and as England’s lawyer, covered

up evidence that England’s computer did not show that there was a

basis to arrest or stop the plaintiff.”                England also designated

Jones as a potential witness based on his knowledge about the

disposition of the traffic ticket that Gonzalez was issued on the


     1
      The parties contest whether Ronald Jones remained on the case
as an attorney after James Jordan entered the case as lead counsel.
The record shows that Jones did not appear as counsel of record on
the pleadings after Jordan entered the case in September 1998.
However, there is other evidence in the record to suggest that
Jones remained on as co-counsel to England throughout the rest of
the case. Indeed, Larson’s questioning of Jones at trial indicates
that Larson still considered Jones to be one of England’s lawyers
at the time he issued the subpoena. In any event, the magistrate
judge clearly found that Jones was one of England’s attorneys at
the time Larson subpoenaed Jones to testify and that Larson knew
Jones was still an attorney in the case. There is ample evidence
to support this finding and thus our decision in this case operates
on the presumption that Larson subpoenaed one of his opposing
lawyers to testify at trial.

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day of the arrest.

       The trial was set for June 5, 2000.                     On May 25, 2000, Larson

issued    the     trial    subpoena    for       Jones     to    obtain    Jones’   trial

testimony.       The subpoena was served on Saturday, June 3, 2000.                     On

the day of trial, England moved to quash the Jones trial subpoena

and also moved for sanctions.                However, the district court ruled

that Jones could testify and Jones did testify during the trial.

       After the jury returned its verdict in favor of the defendant

and final judgment was entered, Gonzales responded to the motion to

quash and for sanctions, arguing that it should be denied. England

then moved to withdraw the motion without prejudice.                       The district

court granted the motion.

       England and the City of Garland subsequently refiled the

motion for sanctions.           The district court referred the matter to

the magistrate judge pursuant to 28 U.S.C. § 636(b).                       After holding

a     hearing,    the     magistrate    ruled           that    Larson’s    conduct    in

subpoenaing Jones to testify was made in bad faith.                       The magistrate

sanctioned Larson by ordering him to pay $15,000 in attorneys fees

and    costs     to   England   and    the       City    of    Garland.    Larson   filed

objections to the magistrate’s findings with the district court.

The district court affirmed the magistrate judge’s sanctions order

under a “clearly erroneous” standard of review and ordered Larson

to pay the movants an additional $7,920 in attorneys fees.                          Larson

appeals from this ruling.



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II.   STANDARD OF REVIEW

      The magistrate judge issued its sanctions order pursuant to a

court’s inherent authority to punish conduct which abuses the

judicial process.   Chambers v. NASCO, Inc., 501 U.S. 532, 543-45

(1991).   We review such an imposition of sanctions for abuse of

discretion. Natural Gas Pipeline v. Energy Gathering, Inc., 2 F.3d

1397, 1411 (5th Cir. 1993).

III. DISCUSSION

      After considering the arguments of each party and the record

evidence, we find that the magistrate abused her discretion in

determining that Larson’s conduct was taken in bad faith.   We do so

for several reasons.

       First, our primary concern in this case is to make sure the

district court was not ambushed at the last minute by Larson’s

request to call Jones as a witness.      Our review of the record

indicates that the district court was not blind-sided by this

request. Larson notified the district court early in the pre-trial

proceedings in a response to England’s summary judgment motion that

he believed Jones was not providing him with important documents

relevant to plaintiff’s case.   He specifically listed Jones as a

trial witness and explained that Jones would be called to testify

concerning the alleged cover-up.     More importantly, the record

shows that Larson specifically informed the district court at the

pre-trial conference that he intended to call Jones to the stand to


                                 5
question      him       about    the    alleged      missing     computer-generated

information. Larson subsequently stuck to that line of questioning

during the trial.

      Jones’ trial testimony demonstrates that Larson did not make

much headway in trying to prove that Jones was involved in a

coverup.         However, Larson’s questioning of Jones did raise a

plausible point concerning whether all computer information related

to the incident which was available from Mesquite was turned over

to   the    plaintiff.          The    fact   that   Larson    was     not   ultimately

successful in his questioning of Jones does not mean that Larson

acted in bad faith in questioning a witness concerning an issue

that was relevant to the plaintiff’s case.

      The district court had all the necessary information before it

at the time of trial to determine whether Jones should be allowed

to testify.       The district court decided that Jones could testify.

Thus, the sanctions issue should have become moot at that point in

time.      We fail to see why the sanctions issue was referred to the

magistrate for a ruling after the district court - knowing all the

relevant     circumstances         surrounding       the    issuance    of     the   trial

subpoena     -    had    already      determined     that    Jones     could    properly

testify.2


      2
       Larson also raises the issue of whether the magistrate had
the authority under 28 U.S.C. § 636 to issue the sanctions order or
was limited to filing a report and recommendation so the district
court could conduct a de novo review. While we agree that very
serious questions exist as to whether the magistrate had the

                                              6
      Second, as previously mentioned, it is undisputed that Jones

was designated by both parties as a trial witness.            England argues

that Larson’s issuance of the subpoena to Jones on the eve of trial

hampered England’s ability to prepare for trial.               This argument

misses the point.       Of course, the subpoena required England’s

counsel to do extra work, but England cannot claim to be unfairly

surprised by the subpoena of a witness which both sides had

designated as a trial witness.

      England strains its own credibility in arguing that Larson

should be sanctioned for subpoenaing a witness that England himself

had listed on his witness list.             Because England had designated

Jones as a trial witness, England could have properly called Jones

to   the   stand   during   his   own   case   in   chief   without   unfairly

surprising the plaintiff.         To paraphrase, what is fair for the

goose is also fair for the gander.

      England also claims that his ability to conduct his trial

defense was harmed because Jones was not able to stay in the

courtroom on the first day of the trial after the invocation of

“The Rule.”    This argument is also a red herring.

      It is true that Jones was unable to stay in the courtroom

during the first day of trial due to the invocation of “The Rule”

and thus Jones was impeded in his ability to assist Jordan in



authority to enter the sanctions order, we need not resolve this
matter because of our determination that Larson’s conduct does not
constitute “bad faith” as a matter of law.

                                        7
trying the case.     However, if Jones was truly needed in the

courtroom to aid in the defense, it stands to reason that lead

counsel Jordan would have asked for an exception to “The Rule” so

that Jones could stay in the courtroom.     It is telling that he

never made this request to the district court.     Thus, England’s

contention that Jones’ exclusion from the courtroom prejudiced his

case falls flat. Any alleged problems which arose from Jones being

removed from the courtroom due to the invocation of “The Rule”

should have been taken up with the district court at the time of

trial.

     We also cannot accept the magistrate judge’s justification for

discounting the fact that Larson had listed Jones as a witness in

the pre-trial disclosures.   According to the magistrate judge, it

is a common practice for attorneys to designate their opposing

counsel as witnesses out of an abundance of caution even though the

attorneys do not truly intend to call their opposing counsel to the

stand.   Thus, the magistrate reasoned that Larson’s designation of

Jones as a witness in pre-trial disclosures should not have alerted

England to the fact that Larson intended to call Jones as a

witness.   In our view, the magistrate’s observation and rationale

are simply incorrect.   Larson’s designation of Jones as a witness

on the pre-trial disclosures put England on notice that Jones was

“fair game” and could be properly called as a witness.

     Finally, we note that Larson’s unrefuted testimony is that he



                                 8
consulted outside counsel as to the propriety of calling Jones as

a witness.   The outside counsel advised Larson that it would be

appropriate to subpoena Jones for trial.   This fact cuts against

any finding that Larson engaged in “bad faith” conduct.

IV.   CONCLUSION

      For these reasons, the district court order affirming the

magistrate’s sanctions order and ordering Larson to pay a total

monetary sanction in the amount of $22,920 is hereby REVERSED.




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