text:
    STATE of Montana, Plaintiff and Appellee, v. Zachary Tucker MARTIN, Defendant and Appellant.
    DA 17-0520
    Supreme Court of Montana.
    Submitted on Briefs: January 23, 2019 Decided: February 19, 2019
    For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Christopher D. Abbott, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Julie R. Patten, Assistant County Attorney, Billings, Montana
   Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Defendant Zachary Tucker Martin appeals from the sentence and judgment of the Thirteenth Judicial District Court, Yellowstone County, designating him a repeat persistent felony offender (PFO) and sentencing him under the requirements of § 46-18-502(2), MCA.

¶2 We address the following issue on appeal:

Whether the District Court erred by sentencing Martin as a repeat persistent felony offender under § 46-18-502(2), MCA.
We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Following an incident on June 19, 2016, the State charged Martin with: (1) robbery by accountability, a felony in violation of § 45-5-401(1)(a), MCA ; (2) assault with a weapon, a felony in violation of § 45-5-213(1)(b), MCA ; and (3) three misdemeanor offenses.

¶4 On July 11, 2016, the State filed a Notice that it would seek treatment of Martin as a PFO upon conviction. The State's Notice stated:

Please take notice pursuant to § 46-13-108, [MCA,] that the State of Montana will seek treatment of [Martin] as a [PFO] as provided in § 46-18-501 et seq., [MCA ].... The previous felony conviction [criminal possession of dangerous drugs] detailed in the Notice meets the definition required in § 46-18-501, [MCA ].

The Notice did not indicate whether the State would seek sentencing under § 46-18-502(1), MCA, or § 46-18-502(2), MCA. The Notice did not explicitly state that Martin was designated a PFO in his 2012 conviction for criminal possession of dangerous drugs (DC 11 - 0146). However, the State attached the Judgment in Martin's 2012 conviction to the Notice. The Judgment ordered that Martin be "designated as a [PFO] for sentencing under § 46-18-501 and § 46-18-502, MCA." At the omnibus hearing, Martin did not challenge the applicability, validity, or accuracy of the 2012 conviction or the PFO designation with that conviction.

¶5 On December 23, 2016, the District Court held a change-of-plea hearing. Martin pled guilty to robbery by accountability and assault with a weapon. As part of the plea agreement, Martin admitted that his guilty plea established a violation of the conditions of his sentence in another case, DC 07-0491. The State agreed to dismiss the three misdemeanor charges in the present case and a pending felony charge in another case (DC 16-1208). The State recommended a ten-year sentence on the robbery count and a ten-year sentence on the assault count, with five years suspended, for a total of twenty years with five years suspended.

¶6 During the hearing, the District Court instructed Martin that if he were to be designated a PFO on the counts of robbery by accountability and assault with a weapon, Martin would be sentenced to a "minimum [of] five years in prison up to 100 years in prison...." Later, the District Court referred to the robbery by accountability charge, saying, "you are a PFO on that...." Martin's counsel acknowledged, "this plea agreement contemplates him being designated a persistent felon.... we've had extensive discussions about the subsequent [PFO] designation that he would be subject to...." The District Court then accepted Martin's guilty plea.

¶7 Following the change-of-plea hearing, Martin was released on bond but twice violated the conditions of his release. As a result, on May 30, 2017, the District Court held a revocation hearing to determine whether Martin's previous sentence should be revoked. After determining that revocation was proper, the District Court held a disposition hearing and resentenced Martin. The State revised its sentencing recommendation in DC 16-0639 to fifteen years for the robbery by accountability charge and fifteen years for the assault charge, for a total of thirty years with no time suspended. Martin requested a total sentence of twenty years in DC 16-0639 and for his probation violation sentence in DC 07-0491 to run concurrently.

¶8 After the parties made their sentencing recommendations, the District Court told Martin:

[Y]ou have been designated as a [PFO] in this case. There was no objection raised to the [PFO] status. I note that in our previous case, DC [11 - 0146 in 2012], you were designated and sentenced as a [PFO] in that case ... therefore, pursuant to § 46-18-501 and -502, [MCA,] you must be sentenced as a [repeat] persistent felony offender, which requires a mandatory minimum of [ten] years on each particular count, and those must run consecutive to any other cases.

¶9 Martin objected to being sentenced as a repeat PFO. Martin argued the State failed to provide notice that it would seek that designation, and that based on the State's previous recommendation of five years, the State must have assumed Martin was a "single PFO," not a repeat PFO. Martin requested the District Court sentence him as "a single PFO, understanding that does not limit what the [District] Court may well do in terms of sentence."

¶10 The District Court disagreed, concluding that the State provided Martin with sufficient notice that he was a PFO. The District Court further concluded that under the PFO sentencing statute, § 46-18-502(2), (4), MCA, it did not have discretion to sentence Martin to less than ten years for each felony, and it could not allow the probation violation sentence to run concurrently. After determining that the State's sentencing recommendation was appropriate given the circumstances of the case, the District Court sentenced Martin in DC 16-0639 to the Montana State Prison for fifteen years for the count of robbery by accountability and fifteen years for the count of assault with a weapon, to run consecutively to the robbery count, with credit for time served, for a total of thirty years. Additionally, the District Court sentenced Martin to three years suspended for the probation violation in DC 07-0491, to run consecutively to the thirty-year sentence.

¶11 On July 5, 2017, the District Court issued its written judgment, in which it designated Martin a "Subsequent Persistent Felony Offender" under §§ 46-18-501, -502, MCA, for purposes of sentencing.

STANDARDS OF REVIEW

¶12 This Court reviews for legality sentences beyond one year of incarceration. State v. Hornstein , 2010 MT 75, ¶ 9, 356 Mont. 14, 229 P.3d 1206 (citing State v. Ariegwe , 2007 MT 204, ¶ 174, 338 Mont. 442, 167 P.3d 815 ). This Court's review for legality is limited to determining whether "the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes." Ariegwe , ¶ 174 (citations omitted). Whether a sentence is legal is a question of law, which we review de novo for correctness. Ariegwe , ¶¶ 174-75. A sentence is legal if it falls within statutory parameters and is constitutional. State v. Kotwicki , 2007 MT 17, ¶¶ 13, 19, 335 Mont. 344, 151 P.3d 892 (citing State v. Garrymore , 2006 MT 245, ¶ 9, 334 Mont. 1, 145 P.3d 946 ).

DISCUSSION

¶13 Whether the District Court erred by sentencing Martin as a repeat persistent felony offender under § 46-18-502(2), MCA.

¶14 The PFO statutes provide the procedural requirements and substantive basis for implementing PFO sanctions. State v. Radi , 176 Mont. 451, 466-68, 578 P.2d 1169, 1178-80 (1978) (citing to the predecessors of §§ 46-13-108, 46-18-502, MCA ). A PFO is an offender who has previously been convicted of a felony, who is presently being sentenced for a second felony committed on a different occasion within five years of the previous felony or within five years of the "offender's release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction," and who has not been pardoned or had his conviction set aside. Section 46-18-501, MCA. A district court may designate and sentence a PFO pursuant to § 46-18-502, MCA, when the underlying charges meet the definition of a felony, and the State has provided proper notice under § 46-13-108, MCA, of its intent to seek PFO status. State v. Damon , 2005 MT 218, ¶¶ 37, 39, 328 Mont. 276, 119 P.3d 1194 (citing State v. Yorek , 2002 MT 74, ¶ 18, 309 Mont. 238, 45 P.3d 872 ).

¶15 Section 46-13-108, MCA, provides in relevant part:

(1) Except for good cause shown, if the prosecution seeks treatment of the accused as a persistent felony offender, notice of that fact must be given at or before the omnibus hearing....
(2) The notice must specify the alleged prior convictions and may not be made known to the jury before the verdict is returned except as allowed by the Montana Rules of Evidence.

Section 46-13-108, MCA. (Emphasis added.) Thus, in order to seek a PFO designation, the State must notify the accused that it plans to seek treatment of the accused as a PFO, the notice must specify the alleged prior convictions that form the basis for the PFO designation, and the notice must be made in a timely manner. Section 46-13-108, MCA ; State v. Scheffelman , 225 Mont. 408, 410-11, 733 P.2d 348, 350 (1987) (citing to the predecessor of § 46-13-108, MCA ).

¶16 "[T]he PFO notice requirement serves primarily to notify the defendant of the prosecutor's intent with respect to seeking a particular sentence," State v. Dist. Ct. of the Eighteenth Jud. Dist. , 2010 MT 263, ¶ 43, 358 Mont. 325, 246 P.3d 415, to provide the defendant with an opportunity to file an objection to the criminal record relied upon in the notice, and to hold a hearing to any such objections, State v. Minez , 2003 MT 344, ¶ 39, 318 Mont. 478, 82 P.3d 1 ; State v. Gallagher , 2005 MT 336, ¶ 32, 330 Mont. 65, 125 P.3d 1141 ; § 46-13-108, MCA. A PFO designation is not a separate crime carrying a separate sentence; rather, it is "a procedural sentence enhancement required by statute." State v. DeWitt , 2006 MT 302, ¶ 11, 334 Mont. 474, 149 P.3d 549 (citing §§ 46-18-501, -502, MCA ). Sentences imposed based upon an offender's status as a PFO replace the sentence for the underlying felony. State v. Gunderson , 2010 MT 166, ¶ 54, 357 Mont. 142, 237 P.3d 74 ; State v. Johnson , 2010 MT 288, ¶ 17, 359 Mont. 15, 245 P.3d 1113.

¶17 Section 46-18-502, MCA, sets forth the parameters of the sentence that a district court may impose on a PFO. It provides, in relevant part:

(1) Except as provided in ... subsection (2) of this section, a persistent felony offender shall be imprisoned in the state prison for a term of not less than 5 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both, if the offender was 21 years of age or older at the time of the commission of the present offense.
(2) [A]n offender shall be imprisoned in a state prison for a term of not less than 10 years or more than 100 years or shall be fined an amount not to exceed $50,000, or both, if:
(a) the offender was a persistent felony offender, as defined in [§] 46-18-501, [MCA,] at the time of the offender's previous felony conviction;
(b) less than 5 years have elapsed between the commission of the present offense and:
(i) the previous felony conviction; or
(ii) the offender's release on parole, from prison, or from other commitment imposed as a result of the previous felony conviction; and
(c) the offender was 21 years of age or older at the time of the commission of the present offense.
...
(4) Any sentence imposed under subsection (2) of this section must run consecutively to any other sentence imposed.

Section 46-18-502, MCA.

¶18 Section 46-18-502(2), MCA, applies when a defendant has previously been sentenced as a PFO, less than five years have elapsed between the commission of the current felony offense and the previous felony conviction and sentence as a PFO, and the defendant was twenty-one years of age or older at the time of the offense. Sentences for repeat PFOs must run consecutively to any other sentences imposed. Gunderson , ¶¶ 48, 55 (affirming a district court's decision sentencing the defendant to both life imprisonment on the charge of attempted sexual intercourse without consent and a term of 100 years as a PFO on the burglary charge) (emphasis in original); § 46-18-502(4), MCA.

¶19 The District Court concluded that, based upon Martin's prior felony convictions and PFO designation, it had no alternative but to sentence him under § 46-18-502(2), MCA, to a minimum of ten years incarceration on both the robbery by accountability and assault charges, and that the sentence must run consecutively to the three-year suspended sentence for his probation violation in DC 07-0491.

¶20 Martin argues that the State and the District Court led him to reasonably believe he would be designated a "regular" PFO under § 46-18-502(1), MCA, rather than a "repeat" PFO under § 46-18-502(2), MCA. Martin argues the State did not request a repeat PFO designation, and Martin did not receive notice that he may be sentenced as such. Instead, Martin argues, the District Court made a sua sponte decision during the sentencing hearing to designate Martin as a repeat PFO. This decision violated statutory and constitutional notice requirements and deprived Martin of a meaningful opportunity to challenge the repeat PFO designation. Martin further argues the District Court's designation of Martin as a repeat PFO prejudiced his sentence, evinced by the District Court's conclusion that Martin's thirty-year combined felony sentence and his three-year suspended sentence in DC 07-0491 must run consecutively, rather than concurrently, to each other. Finally, Martin asks this Court to clarify that § 46-13-108, MCA, requires notice of when (and whether) the State seeks to designate a defendant as a "regular" or "repeat" PFO.

¶21 The State responds that the PFO notice statute, § 46-13-108, MCA, does not require specificity as to which subsection of the PFO sentencing statute, § 46-18-502, MCA, will apply at sentencing. Instead, the PFO sentencing statute requires only that the State give notice that the defendant will be sentenced under the PFO sentencing statute, in lieu of the statute that would otherwise apply to the conviction. Finally, the State argues that regardless of which subsection of § 46-18-502, MCA, applied, the alleged error did not violate Martin's substantial rights because the record does not establish that the District Court's sentence would have been different had Martin not been subject to repeat PFO sentencing. We agree.

¶22 Section 46-13-108, MCA, required the State to notify Martin that it planned to seek a PFO designation and to specify the alleged prior convictions that formed the basis for the current PFO designation. The Notice that Martin received referenced the 2012 conviction, which first designated Martin a PFO, and stated this was the alleged prior conviction upon which the State was relying for the PFO designation in the present case. Martin acknowledged that the 2012 conviction was specified in the PFO Notice and he does not dispute that he was, in fact, designated a PFO when he was sentenced in 2012.

¶23 Section 46-13-108, MCA, does not require the State to specify that it is seeking a "repeat PFO" designation. In fact, the sentencing statute does not include such a designation. See § 46-18-502, MCA. It merely distinguishes between a defendant for whom the State seeks a PFO designation for the first time, versus a defendant for whom the State seeks a PFO designation premised on a previous conviction where a defendant was designated a PFO. Section 46-18-502(1), (2), MCA. In this case, the prior conviction specified in the PFO Notice was a conviction for which Martin was designated a PFO. That was sufficient notice that Martin was a PFO "at the time of [his] previous felony conviction," which placed him under § 46-18-502(2), MCA, for sentencing purposes. See § 46-18-502(2), MCA.

¶24 The purpose of the PFO notice statute is to provide a defendant with the opportunity to challenge the previous conviction. See § 46-13-108, MCA ; Dist. Ct. of the Eighteenth Jud. Dist. , ¶ 49. Martin was afforded such an opportunity. See Gallagher , ¶ 32 ; Minez , ¶ 39. Martin knew of his previous felony conviction, that he was designated a PFO for that previous felony conviction, and that this was the conviction upon which the State was seeking a PFO designation in the current case. Martin did not object to that previous PFO designation, and he did not contest the validity of the underlying conviction. The District Court correctly concluded Martin received adequate notice under the requirements of § 46-13-108, MCA. See Ariegwe , ¶¶ 174-75.

¶25 Martin satisfied all the requirements to be sentenced under § 46-18-502(2), MCA : (1) robbery by accountability and assault with a weapon are both felonies within the meaning of § 45-2-101(23), MCA ; (2) Martin was previously designated a PFO; (3) less than five years had elapsed between his 2012 felony conviction for which he was designated a PFO and the present felony offenses; (4) Martin was over twenty-one years of age when he committed the present offense; and (5) Martin was not pardoned, and his sentence was not commuted. Section 46-18-502, MCA ; see also § 46-18-501, MCA. Thus, the District Court correctly concluded that it had no choice but to sentence Martin pursuant to § 46-18-502(2), (4), MCA.

¶26 Martin's argument that he was prejudiced by his improper designation as a repeat PFO also fails. Martin acknowledges that it was well within the District Court's discretion and statutory mandates to impose the sentence it did. See Ariegwe , ¶ 174. The District Court correctly determined that it was mandated to follow the sentencing requirements of § 46-18-502, MCA. See DeWitt , ¶ 11. Accordingly, the District Court correctly determined that, based on the past felonies and previous PFO designation, it had no discretion but to sentence Martin under § 46-18-502(2), (4), MCA.

¶27 Finally, Martin raises several additional claims of due process violation, all of which are premised on the State's alleged failure to provide notice of which sentence Martin might receive and on the District Court's ultimate sentencing decision. Because we hold Martin received adequate notice prior to sentencing that the State planned to seek PFO designation in this case, we decline to address Martin's due process claims.

CONCLUSION

¶28 The District Court did not err when it sentenced Martin as a repeat PFO under § 46-18-502(2), MCA. See Ariegwe , ¶¶ 174-75. We affirm.

We Concur:

LAURIE McKINNON, J.

BETH BAKER, J.

INGRID GUSTAFSON, J.

DIRK M. SANDEFUR, J.

      In 2017, the legislature amended the PFO statutes. Relevant for this case, the definition of "persistent felony offender," § 46-18-501, MCA, was repealed and replaced with § 46-1-202(18), MCA. Martin committed the offenses in 2016. Accordingly, all statutory references are to the 2015 Montana Code Annotated.

      The District Court consolidated the sentencing and disposition hearings for DC 16-0639 and DC 07-0491, both entitled State of Montana v. Zachary Martin .

      Following the 2017 statutory amendments, a PFO is now defined as:
      (18) [A]n offender who has previously been convicted of two separate felonies and who is presently being sentenced for a third felony committed on a different occasion than either of the first two felonies. At least one of the three felonies must be a sexual offense or a violent offense as those terms are defined in [§ 46-23-502, MCA ]. An offender is considered to have previously been convicted of two separate felonies if:
      (a) the two previous felonies were for offenses that were committed in this state or any other jurisdiction for which a sentence of imprisonment in excess of 1 year could have been imposed;
      (b) less than 5 years have elapsed between the commission of the present offense and either:
      (i) the most recent of the two felony convictions; or
      (ii) the offender's release on parole or otherwise from prison or other commitment imposed as a result of a previous felony conviction; and
      (c) the offender has not been pardoned on the ground of innocence and the conviction has not been set aside at a postconviction hearing.
      Section 46-1-202(18), MCA.

      See § 46-18-201, MCA ; § 45-5-401(1)(a), MCA ; § 45-5-213(1)(b), MCA.


source: Caselaw Access Project

author: MAES, Justice.

license: Public Domain

text:
    In the MATTER OF Eric D. DIXON an Attorney Suspended from the Practice of Law in the Courts of the State of New Mexico
    NO. S-1-SC-37204
    Supreme Court of New Mexico.
    Filing Date: January 17, 2019
    Jane Gagne, Albuquerque, NM, for Disciplinary Board
    Gary C. Mitchell, Ruidoso, NM, for Respondent
   MAES, Justice.

{1} This opinion follows disciplinary proceedings against attorney Eric D. Dixon. The Disciplinary Board found that Dixon, among other things, knowingly made false statements to the Ninth Judicial District Court and later to Disciplinary Counsel related to the representation of his client Jessica Aguilar (Jessica). The false statements began after the district court awarded summary judgment against Jessica on claim preclusion grounds, due to Dixon's prior voluntary dismissal with prejudice of a federal lawsuit that he had filed on behalf of "Jessie Aguilar." The Board concluded that Dixon violated Rule 16-101 NMRA (competence), Rule 16-301 NMRA (meritorious claims and contentions), Rule 16-303 NMRA (candor toward the tribunal), Rule 16-801 NMRA (bar admission and disciplinary matters), and Rule 16-804 NMRA (misconduct), and recommended that he be suspended from the practice of law for one year.

{2} We adopted the Board's findings and conclusions with one modification, which we explain later in this opinion. We indefinitely suspended Dixon from the practice of law for a period of no less than nine months, effective thirty days from November 9, 2018. We further ordered that before filing a petition for reinstatement, Dixon must complete ten hours of ethics continuing legal education classes, with at least half of the credit earned for in-person classes, and must take and pass the Multistate Professional Responsibility Examination with a minimum scaled score of eighty. We ordered Dixon to pay the costs of his disciplinary proceedings and now issue this formal opinion.

{3} We write to emphasize to the bench, bar, and public that a lawyer's duty of candor is clear and unequivocal: "Attorneys are officers of the court, and our system of justice works only if the courts can rely on attorneys to fulfill their duty of candor to the tribunal." In re Chavez , 2013-NMSC-008, ¶ 26, 299 P.3d 403. This case illustrates how easily a lawyer's decision to pursue a litigation strategy that is less than truthful can lead to multiple violations of the duty of candor, to the detriment of the legal system, the legal profession, and the public.

I. BACKGROUND

{4} Dixon, who has been a sole practitioner since 1990 focusing on criminal defense and civil rights work, does not come before us with a clean slate. He was the subject of a public censure by this Court for an unrelated incident that occurred in 2011. See In re Dixon , S-1-SC-33713, Bar Bulletin , N.M. State Bar, Sept. 2, 2015, at 16 ¶ 2 (Public Censure filed Aug. 24, 2015). In that proceeding, several witnesses testified that they saw Dixon honk his horn and accelerate his car toward a Ninth Judicial District Court judge who was crossing the street. Id. Substantial evidence showed that Dixon "knew it was [the judge] who was crossing the street and purposefully drove his vehicle in a manner designed to frighten and harass him." Id. ¶ 4. In our public censure of Dixon, we observed that his conduct "strikes at the very core of our legal system's reliance on a professional, respectful relationship between the bench and bar to ensure the effective administration of justice." Id. ¶ 1. We admonished Dixon for "engag[ing] in threatening and unprofessional conduct," and we "caution[ed] him against engaging in such irresponsible and unprofessional behavior in the future." Id. ¶¶ 1, 10. Dixon's conduct that led to this proceeding, much of which occurred after his public censure, suggests that he did not heed our warning.

{5} To understand the events that resulted in Dixon's suspension in this proceeding, one must ask, who is Jessie Aguilar? Dixon answered that question in an e-mail to opposing counsel on June 11, 2015: "There is no Jessie Aguilar[;] there is a Jessica Aguilar...." That statement serves as the inflection point in this case. Before June 11, 2015, Dixon's conduct was, at best, extremely careless and sloppy ; afterwards, his conduct became increasingly deceptive until he made the false statements at issue in this proceeding. We explain, drawing from the Board's findings of fact and viewing the evidence in the light most favorable to those findings. See In re Bristol , 2006-NMSC-041, ¶ 28, 140 N.M. 317, 142 P.3d 905.

{6} In October of 2013, Dixon entered into separate contingency fee agreements with Aguilar and nine male individuals. At about the same time, Dixon submitted tort claims notices to the Roosevelt County Clerk on behalf of Jessica and his nine male clients. The notice on Jessica's behalf pertained to an incident while she was an inmate at the Roosevelt County Detention Center (RCDC) in which she was allegedly "forced to endure a body cavity search against her wishes" by two unnamed female RCDC employees. The notices for Dixon's nine male clients alleged that, while they were inmates at the RCDC, they had been involved in "one or more of the pepper ball incidents" at the hands of Officer James Andes. Dixon did not enter into a contingency fee agreement with or file a tort claims notice on behalf of anyone specifically named Jessie Aguilar.

A. The Federal Lawsuit

{7} Dixon filed a complaint in April of 2014 in the United States District Court for the District of New Mexico (the Federal Lawsuit). The complaint named Officer Andes and the Roosevelt County Board of County Commissioners as defendants and alleged that on September 26, 2013, Officer Andes had "fired at least five rounds of pepper balls" into a day room at the RCDC, injuring the inmates who were present. The caption of the complaint named ten individuals as plaintiffs: Dixon's nine male clients and a tenth person identified as "Jessie Aguilar." The body of the complaint alleged various civil rights violations and tort claims against the defendants and included specific allegations about only two of the plaintiffs, neither of whom was Jessie Aguilar.

{8} In the early stages of the Federal Lawsuit, all indications were that Jessie Aguilar was a male inmate who had been present during the pepper ball incident alleged in the complaint. For example, Dixon used masculine pronouns to refer to Jessie Aguilar in Dixon's initial disclosures and in his portion of the joint status report filed with the court. Further, in October of 2014, Dixon filed a motion to amend the complaint that included a proposed first amended complaint (FAC). The court never gave leave to file the proposed FAC, which included new details about the alleged abuses and injuries suffered by four more of the plaintiffs. Like the original complaint, the proposed FAC mentioned Jessie Aguilar only in the case caption.

{9} Beginning in November of 2014, clues about Jessie Aguilar's identity began to emerge as the Federal Lawsuit proceeded. On November 7, Dixon e-mailed opposing counsel that he had lost contact with five of his clients, including Jessie Aguilar. But later that month, Dixon's assistant faxed a release for Jessica's medical records-signed "Jessie Aguilar"-to opposing counsel. Similarly, in January of 2015, Dixon e-mailed opposing counsel a list of the plaintiffs' addresses, including the address of "Jessica Aguilar," and stated that "Jessica Aguilar" was available for deposition "here locally." And in February of 2015, Dixon's assistant instructed Jessica to answer interrogatories addressed to Jessie Aguilar, and Jessica's answers were served on opposing counsel. The case caption on the certificate of service for the answers and on a few subsequent pleadings included the name "Jessica Aguilar" instead of "Jessie Aguilar." The answers also included a verification signed by Jessica declaring under oath that she was a plaintiff in the Federal Lawsuit. The answers described Jessica's injuries as "injury to eyes from the pepper ball spray; [and] depression due to possible PTSD," with no reference to injuries resulting from a body cavity search.

{10} The Board made several findings relevant to this time period. First, in late 2014 and early 2015 Dixon traveled extensively to Houston, Texas to assist his elderly parents. Dixon's father succumbed to illness and died in February of 2015. Further, no evidence was presented that Dixon knew that his assistant had faxed Jessica's medical release to opposing counsel. Likewise, Dixon did not personally sign Jessica's interrogatory answers, and no evidence was presented that he had reviewed the answers before they were served on opposing counsel. Dixon's assistant, who is related to Jessica by marriage, undertook those actions to help Dixon. Additionally, Dixon's assistant changed "Jessie" to "Jessica" in the case caption on the certificate of service for the interrogatory answers, and Dixon likely copied and pasted the same caption into subsequent pleadings.

{11} The Federal Lawsuit culminated in settlement negotiations in early 2015. Dixon asserted Jessica's claims to opposing counsel as part of the negotiations, and the defendants offered to settle Jessica's claims for $1,000, which Jessica rejected. Dixon then sent the June 11 e-mail described above, in which he informed opposing counsel, "There is no Jessie Aguilar[;] there is a Jessica Aguilar and her claim was not included in the complaint." Dixon further stated,

I will agree to dismiss Jessie Aguilar with prejudice with the understanding that I can bring a law-suit in the name of Jessica Aguilar. She claims that her POD was shot with pepper balls around the same time. She put on her contact lens which had film on them and burned her eyes. In addition, she was taken to the public health department by two jail guards and had a pelvic exam done while both guards viewed the procedure which was very humiliating to her.

Opposing counsel refused to agree that dismissing Jessie Aguilar would not prejudice Jessica from filing a subsequent lawsuit in state court. Nonetheless, on June 16, 2015, Dixon filed a notice of dismissal with prejudice "of all claims ... that were brought or could have been brought by Jessie Aguilar." No settlement monies were paid to Jessica as a result of the Federal Lawsuit.

B. The State Lawsuit

{12} Ten days later, Dixon filed a complaint on Jessica's behalf in the Ninth Judicial District Court for Roosevelt County (the State Lawsuit). The complaint named as defendants the Roosevelt County Board of County Commissioners and "Jane Does I and II, in their official capacities as Detention Officers." The complaint alleged that Jessica was forced to undergo a pelvic exam without her consent "apparently to look for contraband." It further alleged that two female RCDC employees had remained in the room while a nurse performed the examination and asked Jessica personal and medical questions. The complaint sought unspecified damages for negligence, invasion of privacy, assault, and battery.

{13} On August 7, 2015, the defendants filed a motion for summary judgment on claim preclusion grounds, based on Dixon's dismissal with prejudice of Jessie Aguilar from the Federal Lawsuit. The district court granted the motion for summary judgment. Dixon later filed a motion to reconsider, which the district court denied. Dixon's litigation strategy in these proceedings led to his first knowingly false statement found by the Board.

{14} On August 24, 2015, the same day that we filed the public censure in Dixon's unrelated disciplinary proceeding, Dixon filed his response to the motion for summary judgment in the State Lawsuit. Instead of explaining the confusion in the Federal Lawsuit about the identity of Jessie Aguilar, Dixon stated that "Jesse Aguilar filed a claim in the United States District Court," and that "Jessica Aguilar[,] a female[,] and Jesse Aguilar, a male[,] are not the same person." Dixon maintained that Jessica was never a party to the Federal Lawsuit, and he elaborated that "Jessica Aguilar has never been known as Jesse Aguilar...." The Board did not find clear and convincing evidence that these representations were intentionally misleading. But we observe that at the very least, these representations were evasive and inconsistent with Dixon's earlier admission that "[t]here is no Jessie Aguilar[;] there is a Jessica Aguilar."

{15} Dixon crossed the line separating truth from falsehood in a later filing in support of his motion to reconsider the district court's award of summary judgment against Jessica. Arguing again that Jessica's claims were not part of the Federal Lawsuit, Dixon asserted that "counsel always intended to file a law-suit for Jessica Aguilar and in fact filed a Motion to Amend the Complaint filed in Federal Court to bring Jessica Aguilar into the law-suit ." (Emphasis added.) That assertion was provably false. Neither the motion to amend nor the proposed FAC in the Federal Lawsuit sought to add Jessica as a plaintiff, to add her name to the case caption, to add allegations about an alleged body cavity search, or to join the two unnamed RCDC employees as defendants. The Board later found clear and convincing evidence that Dixon "never intended for the Proposed FAC to bring [Jessica] Aguilar into the Federal Lawsuit" and that his statement to the contrary was intentionally misleading. The district court denied Dixon's motion to reconsider, and Jessica's appeal in the State Lawsuit is pending in the Court of Appeals at the time of the writing of this opinion.

C. The Disciplinary Proceedings

{16} Counsel for Roosevelt County later filed a complaint with the Board related to Dixon's conduct in the Federal and State Lawsuits. Disciplinary Counsel initiated an investigation and eventually filed a specification of charges against Dixon. Dixon's deceptive behavior continued in the disciplinary proceedings.

{17} In response to Disciplinary Counsel's initial inquiry, Dixon wrote a letter describing his version of events in the Federal Lawsuit. Dixon continued to represent that he had filed the Federal Lawsuit on behalf of Jessie Aguilar, one of ten individuals who was "incarcerated at the [RCDC] in Portales, New Mexico" and "who had been pepper-ball sprayed at the [RCDC]." Explaining that the defendants had taken the depositions of five of the plaintiffs, Dixon asserted, "Neither the deposition of Jesse Aguilar or Jessica Aguilar was ever notice[d] or requested." Once again, that statement was provably false. Counsel for the defendants in the Federal Lawsuit electronically served on Dixon via e-mail a notice of deposition for Jessie Aguilar on January 20, 2015. The Board later found that Dixon had constructive notice, if not actual notice, that Jessie Aguilar's deposition had been "noticed" when Dixon stated to the contrary to Disciplinary Counsel.

{18} Dixon also introduced in the disciplinary proceedings a novel explanation for including Jessie Aguilar in the Federal Lawsuit, an explanation the Board found "not credible." Dixon testified in his deposition that he had named Jessie Aguilar as a plaintiff based on a discussion with Roy Montano, one of the other plaintiffs in the Federal Lawsuit.

[T]here is an extended family that I've represented for many years, Roy Montano-Montano is the uncle of Jessica Aguilar. And when I spoke to Mr. Montano, my recollection was that he said he had a nephew by the name of Jesse Aguilar that had been pepper-ball sprayed.

Dixon further testified that he had included Jessie Aguilar in the Federal Lawsuit, despite the absence of a contingency fee agreement, because he had represented Montano before and trusted him. In finding that Dixon's explanation was "not credible," the Board specifically noted that Dixon had never mentioned the alleged conversation with Montano until after Montano's death in May of 2017, despite "numerous opportunities, including in these proceedings, [when] it would have been to [Dixon's] advantage to raise the matter of Roy Montano telling him about a nephew, Jessie Aguilar."

II. DISCUSSION

{19} The Board concluded that Dixon violated Rules 16-101, -301, -303, -801, and -804. We review the Board's conclusions of law de novo. See In re Bristol , 2006-NMSC-041, ¶¶ 18, 26, 140 N.M. 317, 142 P.3d 905.

A. Duty of Candor

{20} "[T]he integrity of the adjudicative process requires that a lawyer act truthfully and honestly before the court." In re Montoya , 2011-NMSC-042, ¶ 33, 150 N.M. 731, 266 P.3d 11 (per curiam). Indeed, the duty of candor applies to every facet of a lawyer's professional responsibilities. See, e.g. , Rule 16-303 (setting forth a lawyer's duties of candor toward the tribunal); Rule 16-401(A) NMRA (providing that a lawyer shall not knowingly make a false statement of fact to a person who is not a client); Rule 16-701 NMRA ("A lawyer shall not make, elicit, or endorse a false or misleading communication about the lawyer or the lawyer's services."); Rule 16-801 (providing that a lawyer shall not knowingly make a false statement of fact "in connection with a bar admission application or in connection with a disciplinary matter"); Rule 16-804(C) (defining professional misconduct for a lawyer, in part, as "engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation"). Dixon's false statements in this proceeding violated Dixon's duty of candor under several of these rules.

{21} As a threshold matter, we pause to address Dixon's argument that the Board's reliance on the statements described in this opinion as a basis for discipline violated his due process rights to notice and an opportunity to respond. Dixon essentially argues that the Board performed a bait-and-switch because the specification of charges alleged only that he knew that Jessie Aguilar and Jessica were the same person and that he therefore improperly filed the State Lawsuit after he had filed and dismissed the Federal Lawsuit on Jessica's behalf. Dixon argues that the Board rejected Disciplinary Counsel's theory of misconduct and substituted its own theory without giving him notice and an opportunity to defend himself. See, e.g. , Mills v. N.M. State Bd. of Psychologist Exam'rs , 1997-NMSC-028, ¶ 14, 123 N.M. 421, 941 P.2d 502 ("Procedural due process requires notice and an opportunity to be heard prior to a deprivation of a protected liberty or property interest.").

{22} Dixon's argument lacks merit. The specification of charges provided notice that Dixon's conduct in the Federal and State Lawsuits was under scrutiny, including whether he had been truthful in the summary judgment proceedings in the State Lawsuit and in the disciplinary proceedings. Dixon hired counsel and vigorously contested the allegations against him at each level of the proceedings, including before this Court. We see no lack of due process under these circumstances. See id. ("The specific requirements of procedural due process ... could encompass any number of the following components: (1) notice of the basis for the government action; (2) a neutral decision maker; (3) the opportunity to orally present a case against the state; (4) the opportunity to present evidence and witnesses against the state; (5) the opportunity to cross-examine witnesses; (6) the right to have an attorney present at the hearing; and (7) a decision based on the evidence presented at the hearing accompanied by an explanation of the decision.").

1. Candor toward the tribunal

{23} Rule 16-303(A)(1) prohibits a lawyer from "knowingly ... mak[ing] a false statement of fact ... to a tribunal." Dixon violated Rule 16-303(A)(1) by knowingly and falsely representing to the Ninth Judicial District Court that he had "filed a Motion to Amend the Complaint filed in Federal Court to bring Jessica Aguilar into the law-suit." Dixon, as the author of the motion to amend and of the proposed FAC, knew that neither document mentioned Jessica or purported to provide any factual or legal support for her claims beyond what may (or may not) have been included in the original complaint. We therefore agree with the Board that there was clear and convincing evidence that "Dixon intentionally misled the court in the State Lawsuit" with that representation and that Dixon "never intended for the Proposed FAC to bring Jessica Aguilar into the Federal Lawsuit."

{24} Dixon takes issue with the Board's reliance on "one sentence" out of "[t]housands of pages of documents [that] were generated in the case" to support a violation of Rule 16-303(A)(1). That argument ignores the context in which Dixon made the false statement. Dixon's "one sentence" resulted from a litigation strategy in the State Lawsuit that needlessly clouded the truth about what had occurred in the Federal Lawsuit. Rather than acknowledging and explaining the confusion that he had created, Dixon advanced a narrative that he had filed the Federal Lawsuit on behalf of a male Jessie Aguilar who was present during the alleged pepper ball incident at RCDC. But as Dixon himself had previously explained, "There is no Jessie Aguilar." And as the Board found, "No male by the name of Jessie, Jesse or Jessy Aguilar or any other spelling of that name was housed at the RCDC on September 30, 2013." Additionally, Dixon never came forward in these proceedings with a credible explanation for naming a male Jessie Aguilar in the Federal Lawsuit. Nonetheless, Dixon pushed harder and harder on that tenuous narrative until he knowingly made a statement that was demonstrably false. Under these circumstances, Dixon's complaint that the Board plucked a single statement out of context to support a violation of Rule 16-303(A)(1) rings hollow.

2. Candor in disciplinary proceedings

{25} Dixon also violated Rule 16-801(A), which prohibits a lawyer from knowingly making a false statement of material fact in connection with a disciplinary proceeding. Dixon falsely stated to Disciplinary Counsel that opposing counsel in the Federal Lawsuit had not given notice of or requested the deposition of "Jesse" Aguilar. Dixon's statement flowed from the same strategy that he had employed in the district court, which once again resulted in a knowing falsehood. We agree with the Board that Dixon's statement was false and that he had constructive notice, if not actual notice, of its falsity at the time that he made it. Further, we note that the Board found that Dixon's explanation for including Jessie Aguilar in the Federal Lawsuit based on a conversation with Montano was not credible "given the totality of circumstances of this case." That finding, which is supported by substantial evidence, is tantamount to a determination that Dixon fabricated his story about Montano telling him that Montano's non-existent nephew, Jessie Aguilar, was present during the pepper ball incident. Substantial evidence supports the Board's conclusion that Dixon violated Rule 16-801(A).

3. Professional misconduct

{26} These knowingly false statements, made in multiple settings and over an extended period of time, violated Rule 16-804. Dixon's actions in the State Lawsuit and in this disciplinary proceeding amounted to conduct involving dishonesty, deceit, and misrepresentation. See Rule 16-804(C). In addition to the harms caused by the knowingly false statements themselves, this case illustrates the pernicious nature of statements that fall just short of that threshold. Dixon's repeated dissembling and splitting of hairs in the State Lawsuit and in the disciplinary proceedings about Jessie Aguilar's identity led to his false statements in both proceedings. Had Dixon simply acknowledged and explained the confusion in the Federal Lawsuit, he would have avoided much of the trouble that has followed.

{27} Due to Dixon's lack of candor throughout these proceedings, we may never know why "Jessie Aguilar" was named in the Federal Lawsuit. The lack of certainty is intolerable. It already has delayed Jessica's state law claims and ultimately may preclude them altogether, depending on the outcome of her appeal. Dixon therefore has committed misconduct prejudicial to the administration of justice. See In re Montoya , 2011-NMSC-042, ¶ 23, 150 N.M. 731, 266 P.3d 11 ("[A] failure of candor to the court can prejudice the administration of justice in violation of Rule 16-804(D) NMRA.").

B. Competence

{28} The mandate of Rule 16-101 is unequivocal: "A lawyer shall provide competent representation to a client." Dixon failed to provide competent representation to Jessica in the Federal Lawsuit by treating her as though she was the same person as the plaintiff Jessie Aguilar. It is equally clear that Dixon never entered into a contingency fee agreement with or filed a tort claims notice on behalf of Jessie Aguilar. As previously discussed, it remains impossible to tell who the Jessie Aguilar named in the Federal Lawsuit actually was. However, there is no doubt that before the Federal Lawsuit was filed, Dixon had agreed to represent Jessica for her claims arising from the events described in her tort claims notice.

{29} Dixon's filing of the Federal Lawsuit on behalf of "Jessie Aguilar" therefore placed Jessica's claims on precarious footing. That is especially true given the similarities of Jessica's claims and the allegations in the Federal Lawsuit, which (1) named one of the same defendants implicated by Jessica's tort claims notice; (2) arose from events that occurred at about the same time and location as the events described in Jessica's tort claims notice; and (3) did not offer any specific allegations to distinguish Jessie Aguilar's factual or legal claims from Jessica's. The potential for confusion with Jessica's claims under these circumstances should have been manifest to a competent attorney.

{30} Dixon further jeopardized Jessica's claims when, in the Federal Lawsuit, he (1) asserted Jessica's claims to opposing counsel during settlement negotiations; (2) attempted to negotiate a settlement on Jessica's behalf when opposing counsel knew that the defendants were making an offer to Jessica of $1,000, which Jessica rejected; (3) sought agreement from the defendants-which they refused-that dismissing "Jessie Aguilar" would not prejudice Jessica from filing a subsequent lawsuit in state court; and (4) voluntarily dismissed the claims of "Jessie Aguilar" with prejudice and without any monies paid to Jessica. A competent attorney would have realized that dismissing the claims of "Jessie Aguilar" with prejudice under these circumstances would imperil a subsequent lawsuit on Jessica's behalf related to the events described in her tort claims notice. Dixon failed to provide competent representation to Jessica.

{31} In our order indefinitely suspending Dixon, we rejected the Board's second basis for a violation of Rule 16-101 because it was not supported by substantial evidence. See Order, In re Dixon , No. S-1-SC-37204 (N.M. Sup. Ct. Nov. 9, 2018). The Board concluded that Dixon failed to provide competent representation to Jessie Aguilar "as evidenced by bringing suit on his behalf without ever speaking with him, and then by dismissing his claims with prejudice without first consulting him." That conclusion is inconsistent with the overriding theme of the Board's findings and conclusions that Dixon never represented a male Jessie Aguilar because a male Jessie Aguilar never existed in connection with the allegations in the Federal Lawsuit. We therefore reject that portion of the Board's conclusion related to Dixon's violation of Rule 16-101. See Rule 17-316(D)(1) NMRA ("The Supreme Court ... may ... reject any or all of the findings, conclusions or recommendations of the Disciplinary Board.").

C. Meritorious claims and contentions

{32} Rule 16-301 provides in pertinent part, "A lawyer shall not bring or defend a proceeding ... unless there is a basis in law and fact for doing so that is not frivolous...." We agree with the Board that Dixon violated Rule 16-301 by filing frivolous claims on behalf of Jessie Aguilar in the Federal Lawsuit, an (apparently fictitious) individual with whom Dixon never spoke "before filing suit and who was not even incarcerated at RCDC on the date in question." The Board found that "Dixon never met or spoke with Jessie Aguilar about the Civil Complaint filed on his behalf, and was never asked by Jessie Aguilar to represent him in connection with claims asserted on his behalf in the Federal Lawsuit." The Board also found that "[n]o male by the name of Jessie, Jesse or Jessy Aguilar or any other spelling of that name was housed at the RCDC on September 30, 2013." And the Board found that Dixon's sole explanation for naming a male Jessie Aguilar in the Federal Lawsuit was not credible. Dixon therefore lacked any basis in law and fact for filing claims on behalf of a male Jessie Aguilar.

{33} We agree with Dixon, however, that one of the Board's findings in support of this violation was contrary to law. The Board found that Dixon lacked a good faith basis, in particular, for Jessie Aguilar's state law claims at least in part because "no notice was ever provided on behalf of Jessie Aguilar in accordance with the New Mexico Tort Claims Act." Dixon rightly asserts that the lack of formal, written notice is not determinative of the validity of a claim under the Tort Claims Act. We have interpreted the notice provision of the Tort Claims Act as setting forth a functional standard, requiring consideration of the totality of the circumstances known to the governmental entity and "whether ... a reasonable person would have concluded that the victim may claim compensation." See, e.g. , Lopez v. State , 1996-NMSC-071, ¶ 12, 122 N.M. 611, 930 P.2d 146 (discussing NMSA 1978, § 41-4-16 (1977) ). In this case, Roosevelt County may have received "actual notice" of the pepper ball incident alleged in the Federal Lawsuit, and therefore, "whether the facts give rise to a reasonable inference that a claim may be filed is a threshold inquiry to be resolved by the court." Id. ¶ 16. We therefore reject this finding. See Rule 17-316(D)(1).

III. DISCIPLINE

{34} We indefinitely suspended Dixon from the practice of law for a period of no less than nine months. We consider an indefinite suspension to be an appropriate sanction for Dixon due not only to the intentional, harmful nature of his conduct in this proceeding, but also to his prior discipline. See Am. Bar Ass'n, Annotated Standards for Imposing Lawyer Sanctions (ABA Annotated Standards ), Standard 8.2 (2015) ("Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession."). In Dixon's public censure, we admonished him for engaging in conduct that "erodes the foundation of our legal system and undermines its reputation in the eyes of the public." In re Dixon , No. S-1-SC-33713, ¶ 9. We further stated, "Without an unwavering public demonstration of trust and respect between the members of the bench and the bar, we cannot expect the public to trust and respect us." Id.

{35} Dixon's conduct in this proceeding raises similar concerns. A lawyer who makes false statements, tells half-truths, and otherwise attempts to mislead harms the legal system and the legal profession. The essential aim of our legal system is to seek truth in the pursuit of justice; for a lawyer, all other duties and responsibilities are secondary. See ABA Annotated Standards 6.11 annot. ("A lawyer who engages in deceptive conduct in legal proceedings violates the most fundamental duty of an officer of the court."). Thus, a lawyer who subordinates truth to obtaining a successful outcome for a client or to avoiding personal responsibility undermines the rule of law and erodes public trust and confidence in the legal system. We must demand better from each other. Dixon's suspension serves as a reminder of the importance of a lawyer's duty of candor.

{36} We are unmoved by the mitigating factors found by the Board. We acknowledge that Dixon faced significant hardships during the Federal Lawsuit, including his parents'

failing health and an unconstitutional visitation policy at the RCDC. While those challenges may have influenced Dixon's performance in the Federal Lawsuit, they do not diminish his responsibility for his lack of candor, which is our primary concern. That is especially true given Dixon's considerable experience practicing law and his refusal to acknowledge the full extent of the seriousness of his conduct. See ABA Annotated Standards 9.22 (listing aggravating factors including prior disciplinary offenses, dishonest motive, multiple offenses, deceptive practices during the disciplinary process, and substantial experience in the practice of law). We therefore conclude that an indefinite suspension is warranted.

{37} Dixon's indefinite suspension will require him to petition the Board for reinstatement and to come before this Court again before he can resume the practice of law. See Rule 17-214(B)(2) NMRA. If Dixon satisfies the conditions for reinstatement and chooses to petition for reinstatement, he will have the burden of demonstrating by clear and convincing evidence the following: (1) that he "has the moral qualifications to practice law"; (2) that he "is once again fit to resume the practice of law"; and (3) "that the resumption of [his] practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or the public interest." Rule 17-214(E). In light of the serious concerns raised by Dixon's conduct in this proceeding and described in his public censure, we encourage Dixon to take each of these elements seriously before he chooses to seek reinstatement. See Rule 17-214(B)(2) (providing that if the Supreme Court denies a petition for reinstatement, the lawyer may not petition again for reinstatement "prior to the expiration of a twelve (12) month period").

IV. CONCLUSION

{38} We adopt the Board's findings of fact and conclusions of law as modified in our order dated November 9, 2018 and in this opinion. We indefinitely suspend Dixon from the practice of law for a period of no less than nine months, subject to the conditions stated earlier in this opinion, and we order him to pay the costs of this proceeding as provided in our November 9, 2018 order.

{39} IT IS SO ORDERED.

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

BARBARA J. VIGIL, Justice

CHARLES W. DANIELS, Justice, retired Sitting by designation

GARY L. CLINGMAN, Justice, retired Sitting by designation

      Many of the events underlying this disciplinary proceeding are the subject of an appeal pending before the Court of Appeals. See Aguilar v. Roosevelt Cty. Bd. of Cty. Comm'rs , No. A-1-CA-36828. Our discussion and analysis of the facts set forth in this opinion are based on the findings and conclusions of the Board and are not intended to influence the outcome of the appeal.

      We find no reference in the Federal Lawsuit to a "Jesse" Aguilar, arguably a third Aguilar in this proceeding. That spelling first occurred in Dixon's response to the motion for summary judgment, which included an affidavit in which Jessica stated under penalty of perjury, "I have never been referred to as Jesse Aguilar." Dixon relied on Jessica's statement to argue that "Jesse" and Jessica are not the same person and that "Jessica Aguilar has never been known as Jesse Aguilar." We adopted the hearing committee's finding that Dixon was unaware that Jessica had ever been known as Jessie. However, we view the timing and circumstances of Dixon's use of the name "Jesse" as highly suspicious and likely intended to evade the truth and confuse this matter even further.

      We again note Dixon's troubling use of the name "Jesse" Aguilar. We adopted the Board's findings that treated Dixon's use of "Jesse" as a mistake or typographical error. We emphasize, however, that the timing and circumstances of Dixon's use of "Jesse," for example when denying receipt of a notice of deposition for "Jesse" Aguilar, suggest an intentional effort to mislead the Board and this Court.