Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 1 of 30
APPEAL,PROTO
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CRIMINAL DOCKET FOR CASE #: 2:16−cr−01012−SRB All Defendants

Case title: USA v. Arpaio et al
Other court case number: 17−71094 Ninth Circuit Court of Appeals

Date Filed: 08/19/2016 Date Terminated: 10/04/2017

Assigned to: Senior Judge Susan R Bolton
Appeals court case number: 17−10448 Ninth Circuit

Defendant (1)
Joseph M Arpaio Sheriff TERMINATED: 10/04/2017

represented by Andrew Melvin McDonald , Jr. Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602−200−7847 Email: melmcdonald2@gmail.com TERMINATED: 04/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis Ira Wilenchik Wilenchik & Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Fax: 602−606−2811 Email: diw@wb−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Douglas Wilenchik Wilenchik & Bartness PC 2810 N 3rd St., Ste. 103 Phoenix, AZ 85004 602−606−2810 Email: jackw@wb−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Joseph John Popolizio Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602200−7876 Email: jpopolizio@jshfirm.com TERMINATED: 01/09/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Justin Michael Ackerman Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 2 of 30
Phoenix, AZ 85004 602−263−1740 Email: jackerman@jshfirm.com TERMINATED: 01/09/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Linda Kim Tivorsak Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602−263−1700 Fax: 602−200−7831 Email: ltivorsak@jshfirm.com TERMINATED: 04/06/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Jeffrey Sinclair Surdakowski Goldman & Zwillinger PLLC 17851 N 85th St., Ste. 175 Scottsdale, AZ 85255 480−626−8483 Fax: 480−502−7500 Email: jsurdakowski@gzlawoffice.com ATTORNEY TO BE NOTICED Designation: Retained
Mark David Goldman Goldman & Zwillinger PLLC 17851 N 85th St., Ste. 175 Scottsdale, AZ 85255 480−626−8483 Email: mgoldman@gzlawoffice.com ATTORNEY TO BE NOTICED Designation: Retained
Vincent Rene Mayr Goldman & Zwillinger PLLC 17851 N 85th St., Ste. 175 Scottsdale, AZ 85255 480−626−8483 Fax: 480−502−7500 Email: vmayr@gzlawoffice.com ATTORNEY TO BE NOTICED

Pending Counts None

Disposition

Highest Offense Level (Opening) None

Terminated Counts
18:401 − Criminal Contempt (1)

Disposition

Highest Offense Level (Terminated) Felony

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Complaints None Assigned to: Senior Judge Susan R Bolton Defendant (2) Gerard Sheridan Chief Deputy TERMINATED: 12/13/2016
Pending Counts 18:401 − Criminal Contempt (1) Highest Offense Level (Opening) Felony Terminated Counts None Highest Offense Level (Terminated) None Complaints None Assigned to: Senior Judge Susan R Bolton Defendant (3) Steven R Bailey Captain TERMINATED: 12/13/2016

Disposition
represented by Barry D Mitchell Mitchell Stein Carey Chapman PC 1 Renaissance Sq. 2 N Central Ave., Ste. 1450 Phoenix, AZ 85004 602−358−0293 Fax: 602−358−0291 Email: barry@mscclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained Lee David Stein Mitchell Stein Carey Chapman PC 1 Renaissance Sq. 2 N Central Ave., Ste. 1450 Phoenix, AZ 85004 602−358−0292 Fax: 602−358−0291 Email: lee@mscclaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Disposition
Disposition
Disposition
represented by Barry D Mitchell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 4 of 30
Designation: Retained
Lee David Stein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Pending Counts
18:401 − Criminal Contempt (1)

Disposition

Highest Offense Level (Opening) Felony

Terminated Counts None

Disposition

Highest Offense Level (Terminated)
None

Complaints None

Disposition

Assigned to: Senior Judge Susan R Bolton

Defendant (4)
Michele M Iafrate Attorney TERMINATED: 12/13/2016

represented by Dale A Danneman Lewis Roca Rothgerber Christie LLP − Phoenix Office 201 E Washington St., Ste. 1200 Phoenix, AZ 85004 602−262−5311 Fax: 602−734−3744 Email: ddanneman@lrrlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Pending Counts
18:401 − Criminal Contempt (1)

Disposition

Highest Offense Level (Opening) Felony

Terminated Counts None

Disposition

Highest Offense Level (Terminated)
None

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Complaints None

Disposition

Movant Timothy Casey

represented by Karen Ann Clark Adams & Clark PC 520 E Portland St., Ste. 200 Phoenix, AZ 85004 602−258−3542 Fax: 602−258−1377 Email: assistant@adamsclark.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Roderick & Solange MacArthur Justice Center

represented by David M Shapiro Roderick & Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E Chicago Ave., 8th Fl. Chicago, IL 60611−3069 312−503−0711 Fax: 312−503−1272 Email: david.shapiro@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Locke E Bowman Roderick and Solange MacArthur Justice Center Northwestern Pritzker School of Law 375 E Chicago Ave., 8th Fl. Chicago, IL 60611−3069 312−503−0844 Fax: 312−503−1272 Email: l−bowman@law.northwestern.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus
Coalition to Preserve Protect and Defend

represented by Dennis Aftergut Renne Sloan Holtzman Sakai LLP 350 Sansome St., Ste. 300 San Francisco, CA 94104 415−678−3800 Fax: 415−678−3838 Email: da1.cppd@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Louise H Renne Renne Sloan Holtzman Sakai LLP 350 Sansome St., Ste. 300 San Francisco, CA 94104

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 6 of 30
415−678−3800 Fax: 415−678−3838 Email: lrenne@publiclawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Michael L Piccarreta Piccarreta Davis Keenan Fidel PC 2 E Congress St., Ste. 1000 Tucson, AZ 85701 520−622−6900 Fax: 520−622−0521 Email: mlp@pd−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald A Fein Free Speech for People 1340 Centre St., Ste. 209 Newton, MA 02459 617−244−0234 Fax: 206−260−3031 Email: rfein@freespeechforpeople.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus
Protect Democracy Project Incorporated

represented by Ian Bassin Protect Democracy Project Incorporated 2020 Pennsylvania Ave. NW, Ste. 163 Washington, DC 20006 202−599−0466 Fax: 929−777−8248 Email: ian.bassin@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Jean−Jacques Cabou Perkins Coie LLP − Phoenix, AZ P.O. Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7000 Email: jcabou@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Justin Florence Protect Democracy Project Incorporated 2020 Pennsylvania Ave. NW, Ste. 163 Washington, DC 20006 202−599−0466 Fax: 929−777−8428 Email: justin.florence@protectdemocracy.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Katherine Elizabeth May Perkins Coie LLP − Phoenix, AZ

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 7 of 30
P.O. Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7045 Email: kmay@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Phil Michael Spector Messing & Spector LLP − Baltimore MD 1200 Steuart St., Ste. 1112 Baltimore, MD 21230 202−277−8173 Email: ps@messingspector.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Shane R Swindle Perkins Coie LLP P.O. Box 400 Phoenix, AZ 85001−0400 602−351−8000 Fax: 602−648−7184 Email: SSwindle@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus Erwin Chemerinsky

represented by Joshua David R Bendor Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067−6379 602−640−9000 Email: jbendor@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Larry A Hammond Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067−6379 602−640−9000 Fax: 602−640−9050 Email: lhammond@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Michael E Tigar

represented by Joshua David R Bendor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Larry A Hammond (See above for address) LEAD ATTORNEY

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 8 of 30 ATTORNEY TO BE NOTICED

Amicus Jane B Tigar

represented by Joshua David R Bendor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Larry A Hammond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Martin Redish

represented by Dennis Aftergut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Louise H Renne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Michael L Piccarreta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Free Speech for People

represented by Dennis Aftergut (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Louise H Renne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Michael L Piccarreta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald A Fein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 9 of 30

Ortega Melendres Plaintiffs

represented by Cecillia D Wang ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0775 Fax: 415−395−0950 Email: cwang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Julia Alejandra Gomez Hernandez MALDEF − Los Angeles, CA 634 S Spring St., 11th Fl. Los Angeles, CA 90014 213−629−2512 Fax: 213−629−0266 Email: jgomez@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Kathleen E Brody ACLU − Phoenix, AZ P.O. Box 17148 Phoenix, AZ 85011 602−650−1854 Fax: 602−650−1376 Email: kbrody@acluaz.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katrina Leigh Eiland ACLU − San Francisco, CA Immigrants Rights Project 39 Drumm St. San Francisco, CA 94111 415−343−0770 Fax: 415−395−0950 Email: keiland@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Stanley Young Covington & Burling LLP 333 Twin Dolphin Dr Ste 700 Redwood Shores, CA 94065 650−632−4704 Fax: 650−632−4804 Email: syoung@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Amicus Marin Redish

represented by Ronald A Fein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 10 of 30

Amicus
Certain Members of Congress of the United States

represented by R Bradley Miller Guttman Buschner & Brooks PLLC 2000 P St. NW, Ste. 300 Washington, DC 20036 202−800−3001 Fax: 202−827−0041 Email: bmiller@gbblegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained
Spencer Garrett Scharff Goddard Law Office PLC 502 W Roosevelt St. Phoenix, AZ 85003 602−739−4417 Email: scharff@goddardlawplc.com ATTORNEY TO BE NOTICED

Plaintiff USA

represented by John Dixon Keller US Dept of Justice Public Integrity Section 10th & Constitution Ave. Washington, DC 20530 202−514−1412 Email: John.Keller2@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant US Attorney
Victor R Salgado US Dept of Justice − Public Integrity Section, 1400 New York Ave. NW, 12th Fl. Washington, DC 20005 202−353−4580 Email: victor.salgado@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Assistant US Attorney
Simon Joseph Cataldo US Dept of Justice 1400 New York Ave., 12th Fl. Washington, DC 20005 202−616−2464 Email: simon.cataldo@usdoj.gov ATTORNEY TO BE NOTICED Designation: Assistant US Attorney

Date Filed 08/19/2016

# Docket Text
1 ORDER re Criminal Contempt as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate − IT IS THEREFORE ORDERED that pursuant to Rule 42(a) (1) of the Federal Rules of Criminal Procedure, the Court refers Sheriff Joseph M. Arpaio, Chief Deputy Gerard Sheridan, Captain Steven R. Bailey, and Attorney Michelle M. Iafrate to another Judge of this Court to determine whether they should be held in criminal contempt for the matters detailed above. IT IS FURTHER ORDERED directing the Clerk of Court to refer the criminal contempt proceedings, by random lot,

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08/19/2016
08/26/2016 09/06/2016 09/06/2016 09/06/2016 09/06/2016
09/07/2016 09/07/2016 09/07/2016 09/07/2016 09/08/2016 09/09/2016 09/13/2016 09/13/2016

to another Judge in the District of Arizona. IT IS FURTHER ORDERED directing the Clerk of Court to promptly notify the United States Attorney for the District of Arizona regarding this Order. (See document for further details). Signed by Judge G Murray Snow on 8/19/16. (LAD) (Entered: 08/19/2016)
2 ORDER OF RECUSAL in case as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate: ORDERED this matter be reassigned, by lot, to another judge in the District of Arizona. FURTHER ORDERED that this matter has been reassigned by random lot to the Honorable Susan R. Bolton. All future pleadings and papers submitted for filing shall bear the following complete case number: CR−16−01012−PHX−SRB. Signed by Judge John J Tuchi on 8/19/16.(SJF) (Entered: 08/19/2016)
3 NOTICE OF RECUSAL with attached formal notice from EOUSA by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Strange, Elizabeth) (Entered: 08/26/2016)
4 NOTICE OF ATTORNEY APPEARANCE: John D. Keller appearing for USA . (Keller, John) (Entered: 09/06/2016)
5 NOTICE OF ATTORNEY APPEARANCE: Victor R. Salgado appearing for USA . (Salgado, Victor) (Entered: 09/06/2016)
6 MOTION for Status Conference by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Keller, John) (Entered: 09/06/2016)
7 ORDER as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey and Michele M Iafrate: On September 6, 2016, Government's counsel filed a Motion for Status Conference Doc. 6 . The certificate of service on Page 3 of the Government's motion states "....on this date, I electronically filed the foregoing filing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the attorneys of record for the defendant." No counsel having yet appeared in this criminal case for Defendants, IT IS ORDERED directing Government's counsel to mail a copy of the motion to the attorney known to represent each of the Defendants and notify the Court in writing that Government's counsel has complied. IT IS FURTHER ORDERED that the motion will be denied within 3 days of the date of this order if counsel does not comply with the ECF Administrative Policies and Procedures Manual, Section G, specifically, subparagraph 1b. Signed by Judge Susan R Bolton on 9/6/16.(MAW) (Entered: 09/06/2016)
8 NOTICE OF ATTORNEY APPEARANCE: Andrew Melvin McDonald, Jr appearing for Joseph M Arpaio . (McDonald, Andrew) (Entered: 09/07/2016)
9 NOTICE of No Objection to Status Conference by Joseph M Arpaio re: 6 MOTION for Status Conference . (McDonald, Andrew) (Entered: 09/07/2016)
10 NOTICE OF ATTORNEY APPEARANCE: Lee David Stein appearing for Gerard Sheridan, Steven R Bailey . (Stein, Lee) (Entered: 09/07/2016)
11 NOTICE OF COMPLIANCE by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Salgado, Victor) (Entered: 09/07/2016)
12 NOTICE OF ATTORNEY APPEARANCE: Dale A Danneman appearing for Michele M Iafrate . (Danneman, Dale) (Entered: 09/08/2016)
13 ORDER granting 6 Motion for Status Conference as to Joseph M Arpaio (1), Gerard Sheridan (2), Steven R Bailey (3) and Michele M Iafrate (4). IT IS FURTHER ORDERED setting Status Conference on October 11, 2016, at 10:00 a.m. Signed by Judge Susan R Bolton on 9/9/16.(MAW) (Entered: 09/09/2016)
14 MOTION for Leave to Appear Telephonic at October 11, 2016 Status Conference as to attorney Barry Mitchell by Gerard Sheridan. (Attachments: # 1 Text of Proposed Order)(Mitchell, Barry) (Entered: 09/13/2016)
15 MOTION for Leave to Appear Telephonic at October 11, 2016 Status Conference as to attorney Barry Mitchell by Steven R Bailey. (Attachments: # 1 Text of Proposed Order)(Mitchell, Barry) (Entered: 09/13/2016)

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09/16/2016
10/05/2016 10/05/2016 10/11/2016 10/11/2016 10/11/2016 10/11/2016 10/11/2016 10/11/2016
10/11/2016
10/13/2016 10/13/2016 10/17/2016

16 ORDER granting 14 and 15 Motions for Leave to Appear Telephonically as to Gerard Sheridan (2) and Steven R Bailey (3) and allowing counsel Barry Mitchell to participate telephonically for the Status Conference set for Tuesday, October 11, 2016, at 10:00 a.m. Counsel is directed to call the Court at 602−322−7570 at the time of the scheduled hearing. No cell phones or speaker phones are permitted. Signed by Judge Susan R Bolton on 9/16/16.(MAW) (Entered: 09/16/2016)
17 NOTICE of Joint Representation by Gerard Sheridan. (Stein, Lee) (Entered: 10/05/2016)
18 NOTICE of Joint Representation by Steven R Bailey. (Stein, Lee) (Entered: 10/05/2016)
19 TRANSCRIPT REQUEST by Michele M Iafrate for proceedings held on 10/11/16, Judge Susan R Bolton hearing judge(s). (Danneman, Dale) (Entered: 10/11/2016)
20 STIPULATION Stipulation of Michele Iafrate by Michele M Iafrate. (Danneman, Dale) (Entered: 10/11/2016)
21 NOTICE Defendant Arpaio's Notice Re: Tolling of Statute of Limitations Under 18 U.S.C. 402 by Joseph M Arpaio. (McDonald, Andrew) (Entered: 10/11/2016)
22 NOTICE Re Tolling of the Statute of Limitations by Gerard Sheridan. (Stein, Lee) (Entered: 10/11/2016)
23 NOTICE Re Tolling of the Statute of Limitations by Steven R Bailey. (Stein, Lee) (Entered: 10/11/2016)
24 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Status Conference as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey and Michele M Iafrate held on 10/11/2016. IT IS ORDERED directing Defense counsel to advise the Court in writing no later than 2:00 p.m., October 11, 2016, whether their clients agree to a tolling of the statute of limitations under 18 U.S.C. §3285 effective this date. IT IS FURTHER ORDERED directing Government's counsel to submit to the Court no later than 5:00 p.m., October 12, 2016, an Order to Show Cause regarding the preliminary injunction violation. The Order shall include the essential facts constituting the charged criminal contempt and the date and time for Trial, which will be set for December 6, 2016, at 9:00 a.m. as to Defendant Joseph Arpaio. IT IS FURTHER ORDERED directing Defense counsel to file their briefs no later than October 25, 2016, regarding the applicability of the statute of limitations and possible tolling with respect to the contempt findings related to the Montgomery documents and the identification documents [see attached minute entry for details]. (Court Reporter Liz Lemke) Hearing held 10:04 AM to 11:07 AM.(MAW) (Entered: 10/12/2016)
27 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of STATUS CONFERENCE proceedings as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, and Michele M Iafrate held on 10/11/2016, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/1/2016. Redacted Transcript Deadline set for 11/14/2016. Release of Transcript Restriction set for 1/9/2017. (RAP) (Entered: 10/13/2016)
25 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 10−11−16, Judge Susan R Bolton hearing judge(s). (Keller, John) (Entered: 10/13/2016)
26 TRANSCRIPT REQUEST by Joseph M Arpaio for proceedings held on October 11, 2016, Judge Susan R Bolton hearing judge(s). (Ackerman, Justin) (Entered: 10/13/2016)
28 *NOTICE of Filing Proposed Order re: 24 Minute Entry by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Attachments: # 1 Proposed Order)(Keller, John) *Modified text and document number on 10/18/2016 (EJA). (Entered: 10/17/2016)

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10/17/2016 10/17/2016 10/17/2016
10/18/2016 10/19/2016 10/24/2016 10/24/2016 10/25/2016
10/25/2016 10/25/2016 10/28/2016 10/28/2016 10/31/2016 10/31/2016 11/01/2016
11/01/2016

29 *OBJECTION to: 28 Notice (Other) Defendant Arpaio's Objection to the United State's Notice of Lodged Document by Joseph M Arpaio. (Attachments: # 1 Exhibit Exhibit A)(McDonald, Andrew) *Modified to correct event type on 10/18/2016 (EJA). (Entered: 10/17/2016)
30 *RESPONSE to 29 OBJECTION to Proposed Order to Show Cause by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Keller, John) *Modified to correct event type on 10/18/2016 (EJA). (Entered: 10/17/2016)
31 MINUTE ORDER as to Joseph M Arpaio: At the Court's direction, Government's counsel filed its lodged proposed Order to Show Cause, Defendant Arpaio filed his Objection and the Government filed its Response. Defendant may file a reply no later than 5:00PM, 10/18/2016. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 10/17/2016)
32 REPLY re: 30 Reply Defendant Arpaio's Reply in support of his Objection to the United States' Lodged Order to Show Cause by Joseph M Arpaio. (McDonald, Andrew) (Entered: 10/18/2016)
33 TRANSCRIPT REQUEST by Daniel R. Ortega, Jr. of the Ortega Law Firm as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, and Michele M Iafrate for Status Hearing proceedings held on 10/11/2016, Judge Susan R Bolton hearing judge(s). (RAP) (Entered: 10/19/2016)
34 MEMORANDUM by Steven R Bailey Regarding Expiration of Statute of Limitations Under 18 U.S.C. Sec. 3285. (Stein, Lee) (Entered: 10/24/2016)
35 MEMORANDUM by Gerard Sheridan Regarding Expiration of Statute of Limitations Under 18 U.S.C. Sec. 3285. (Stein, Lee) (Entered: 10/24/2016)
36 ORDER TO SHOW CAUSE as to Joseph M. Arpaio: The Court issues a notice to show cause as to whether Joseph M. Arpaio should be held in criminal contempt for willful disobedience of Judge Snow's preliminary injunction of December 23, 2011. IT IS FURTHER ORDERED that Trial for this matter is set for December 6, 2016 at 9:00 a.m. in the Sandra Day O'Connor U.S. Courthouse, 401 W. Washington Street, Courtroom 502, Phoenix, Arizona 85003 [see attached Order for details]. Signed by Judge Susan R Bolton on 10/25/16.(MAW) (Entered: 10/25/2016)
37 MEMORANDUM by Joseph M Arpaio Defendant Sheriff Arpaio's Brief regarding the Statute of Limitations Applicable to 18 U.S.C. Section 402. (McDonald, Andrew) (Entered: 10/25/2016)
38 MEMORANDUM by Michele M Iafrate Re Statute of Limitations Bar. (Danneman, Dale) (Entered: 10/25/2016)
39 NOTICE OF INTENT TO FILE WAIVER of Defendant's Appearance At Arraignment by Joseph M Arpaio filed 10/28/2016. (McDonald, Andrew) (Entered: 10/28/2016)
40 MOTION to Continue Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance, MOTION to Continue Trial by Joseph M Arpaio. (McDonald, Andrew) (Entered: 10/28/2016)
41 EX PARTE MOTION for Third Party Ex Parte by Ramon Gomez as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (KGM) (Entered: 10/31/2016)
42 NOTICE re: Request by Non−Prisoner Pro Se Party for Electronic Noticing by Ramon Gomez. (KGM) (Entered: 10/31/2016)
43 ORDER as to Joseph M. Arpaio: On October 28, 2016, Defense counsel for Joseph M. Arpaio filed a Waiver of Speedy Trial Rights and Request for Continuance (Doc. 40 ). IT IS ORDERED that the request will be denied within 3 days of the date of this order if counsel does not comply with the ECF Administrative Policies and Procedures Manual, Section G, specifically, subparagraph 1b. Signed by Judge Susan R Bolton on 11/1/16.(MAW) (Entered: 11/01/2016)
44 Additional Attachments to Main Document re: 40 MOTION to Continue Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance MOTION to

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11/01/2016 11/01/2016 11/01/2016 11/02/2016
11/04/2016
11/09/2016 11/09/2016
11/17/2016 11/22/2016
11/28/2016 11/29/2016
12/01/2016 12/05/2016 12/06/2016
12/06/2016 12/13/2016

Continue Trial (Proposed Order) by Joseph M Arpaio. (McDonald, Andrew) (Entered: 11/01/2016)
45 NOTICE of Service by Ramon Gomez as to Gerard Sheridan, Steven R Bailey re: 41 MOTION for Third Party Ex Parte. (KGM) (Entered: 11/02/2016)
46 NOTICE of service by Ramon Gomez as to Michele M Iafrate re: 41 MOTION for Third Party Ex Parte. (KGM) (Entered: 11/02/2016)
47 NOTICE of service by Ramon Gomez as to Joseph M Arpaio re: 41 MOTION for Third Party Ex Parte. (KGM) (Entered: 11/02/2016)
48 ORDER as to Joseph M Arpaio: IT IS ORDERED denying Defendant's Request/Motion to Continue Trial (Doc. 40 ) with leave to re−file said Motion in compliance with LRCiv 7.3(a) and (b). Signed by Judge Susan R Bolton on 11/2/16.(MAW) (Entered: 11/02/2016)
49 *RESPONSE to Defendants' Memoranda on Statute of Limitations re: 34 Memorandum, 35 Memorandum, 37 Memorandum and 38 Memorandum, by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate . (Keller, John) *Modified to correct event on 11/4/2016 (ATD). (Entered: 11/04/2016)
50 MOTION to Continue Trial Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(McDonald, Andrew) (Entered: 11/09/2016)
51 RESPONSE in Opposition by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate re: 50 MOTION to Continue Trial Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance . (Attachments: # 1 Text of Proposed Order)(Keller, John) (Entered: 11/09/2016)
52 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 50 MOTION to Continue Trial Defendant Arpaio's Waiver of Speedy Trial Rights and Request for Continuance . (McDonald, Andrew) (Entered: 11/17/2016)
53 ORDER denying 41 Ramon Gomez's Motion for Third Party Ex Parte as to Joseph M Arpaio (1), Gerard Sheridan (2), Steven R Bailey (3) and Michele M Iafrate (4) [see attached Order for details]. Signed by Judge Susan R Bolton on 11/22/16.(MAW) (Entered: 11/22/2016)
54 MOTION for Protective Order Governing Discovery by USA as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Keller, John) (Entered: 11/28/2016)
55 ORDER granting in part and denying in part 50 Request for Continuance filed as to Joseph M Arpaio (1). IT IS FURTHER ORDERED continuing Trial from December 6, 2016, to April 4, 2017, at 9:00 a.m. [see attached Order for details]. Signed by Judge Susan R Bolton on 11/29/16.(MAW) (Entered: 11/29/2016)
56 RESPONSE to Motion by Joseph M Arpaio re: 54 MOTION for Protective Order Governing Discovery . (McDonald, Andrew) (Entered: 12/01/2016)
57 MOTION to Continue Trial (Unopposed) by USA as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Keller, John) (Entered: 12/05/2016)
58 ORDER denying as premature 57 Government's Motion to Continue Trial filed as to Joseph M Arpaio (1). The Court intends to schedule a Pretrial Conference in early 2017 to discuss the parties' readiness for trial and if an adjustment of the trial date is required a motion can be filed at that time. Signed by Judge Susan R Bolton on 12/6/16.(MAW) (Entered: 12/06/2016)
59 ORDER granting 54 Motion for Protective Order as to Joseph M Arpaio (1) [see attached Order for details]. Signed by Judge Susan R Bolton on 12/6/16.(MAW) (Entered: 12/06/2016)
60 ORDER: 18 U.S.C. § 3285 provides a one year statute of limitations for criminal contempt that is also a crime and the contumacious conduct at issue ended more than one year ago, the Court dismisses Defendants Sheridan, Bailey, and Iafrate from the criminal contempt proceedings and will proceed against Defendant Arpaio only for those allegations of criminal contempt in the Order to Show Cause (Doc. 36 ) [see

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 15 of 30

12/15/2016 12/27/2016 01/03/2017 01/06/2017 01/09/2017 01/09/2017 01/25/2017 01/25/2017
01/27/2017 01/27/2017
01/31/2017 02/03/2017 03/01/2017

attached Order for details]. Signed by Judge Susan R Bolton on 12/13/16.(MAW) (Entered: 12/13/2016)
61 MOTION for Bench Trial by USA as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Keller, John) (Entered: 12/15/2016)
62 *RESPONSE to Motion by Joseph M Arpaio re: 61 MOTION for Bench Trial and CROSS MOTION Requesting Jury Trial. (McDonald, Andrew) *Modified to add motion part on 12/28/2016 (KGM). (Entered: 12/27/2016)
63 REPLY TO RESPONSE to Motion by USA as to Joseph M Arpaio re: 62 MOTION . (Keller, John) (Entered: 01/03/2017)
64 ORDER as to Joseph M Arpaio: IT IS ORDERED setting Pretrial Conference on January 25, 2017, at 10:30 a.m. Defendant Joseph M. Arpaio is directed to be present for the hearing. Signed by Judge Susan R Bolton on 1/6/17.(MAW) (Entered: 01/06/2017)
65 *NOTICE of Attorney Appearance/Association − Defendant by Joseph M Arpaio. (McDonald, Andrew) *Modified to correct event type on 1/10/2017 (KGM). (Entered: 01/09/2017)
66 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 62 MOTION Reply in Support of Arpaio's Request for Jury Trial. (McDonald, Andrew) (Entered: 01/09/2017)
69 *SUPPLEMENT to 66 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 62 MOTION Supplement to Government's Response re Arpaio Request for Jury Trial. (McDonald, Andrew) *Modified to correct event type on 1/25/2017 (KGM). (Entered: 01/25/2017)
71 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Pretrial Conference as to Joseph M Arpaio held on 1/25/2017. Argument held regarding Government's Request/Motion for Bench Trial (Doc. 61 ) and Defendant's Cross Motion Requesting Jury Trial (Doc. 62 ). The Court will issue its ruling in a separate Order. At the request of the parties, IT IS ORDERED continuing Trial from April 4, 2017, to April 25, 2017, at 9:00 a.m. Discussion held re: pretrial motions. The Court sets the motions deadline for March 24, 2017 [see attached Order for details]. (Court Reporter Liz Lemke) Hearing held 10:40 AM to 11:34 AM.(MAW) (Entered: 01/27/2017)
70 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio for proceedings held on 1−25−17, Judge Susan R Bolton hearing judge(s). (Keller, John) (Entered: 01/27/2017)
74 NOTICE OF FILING OF OFFICIAL REDACTED TRANSCRIPT of PRETRIAL CONFERENCE proceedings as to Joseph M Arpaio held on 01/25/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/17/2017. Redacted Transcript Deadline set for 2/27/2017. Release of Transcript Restriction set for 4/27/2017. (RAP) (Entered: 01/30/2017)
75 NOTICE OF ATTORNEY APPEARANCE: Simon Joseph Cataldo appearing for USA . (Cataldo, Simon) (Entered: 01/31/2017)
79 ORDER denying Defendant's 77 Motion to Seal Amended Response as to Joseph M Arpaio (1). Signed by Judge Susan R Bolton on 02/03/2017. (ATD) (Entered: 02/03/2017)
80 TRANSCRIPT REQUEST by Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 1−25−17, Judge Susan R Bolton hearing judge(s). (McDonald, Andrew) (Entered: 03/01/2017)

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 16 of 30

03/01/2017
03/01/2017 03/01/2017
03/17/2017 03/17/2017 03/20/2017 03/20/2017
03/21/2017 03/22/2017 03/23/2017 03/23/2017 03/23/2017 03/23/2017 03/23/2017 03/24/2017 03/24/2017

81 NOTICE TO FILER OF DEFICIENCY re: AO435 80 Transcript Request filed by Joseph M Arpaio. Item 18 − ORDER: (CATEGORY) A box under FIRST COPY was incorrectly checked. An original has not yet been ordered and prepared and e−mail address was not provided where e−mail copy should be sent. FOLLOW−UP ACTION REQUIRED: Please refile with the appropriate box checked under the ORIGINAL +1 column and provide an email address for delivery. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) (Entered: 03/01/2017)
82 AMENDED TRANSCRIPT REQUEST pursuant to 81 Notice of Deficiency by Joseph M Arpaio for proceedings held on 1−25−17, Judge Susan R Bolton hearing judge(s). (McDonald, Andrew) (Entered: 03/01/2017)
83 ORDER as to Joseph M Arpaio (1): IT IS ORDERED granting the Government's Brief in Support of Request for Bench Trial (Doc. 61 ). IT IS FURTHER ORDERED denying Defendant's Cross−Motion Requesting Jury Trial (Doc. 62 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 3/1/17.(MAW) (Entered: 03/01/2017)
85 NOTICE OF ATTORNEY APPEARANCE: Mark David Goldman appearing for Joseph M Arpaio . (Goldman, Mark) (Entered: 03/17/2017)
86 MOTION to Continue Trial by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Goldman, Mark) (Entered: 03/17/2017)
87 RESPONSE in Opposition by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate re: 86 MOTION to Continue Trial . (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Keller, John) (Entered: 03/20/2017)
88 ORDER as to Joseph M Arpaio: The Court is in receipt of Defendant Joseph M. Arpaio's Motion to Continue Trial (Doc. 86 ). The Government filed its response at Doc. 87. IT IS ORDERED directing Defense counsel to file a reply no later than Noon, March 23, 2017. IT IS FURTHER ORDERED denying Defendant's request to extend the pretrial motions deadline and disclosure of Defendant's witness and exhibit lists contained within the motion to continue trial. Signed by Judge Susan R Bolton on 3/20/17.(MAW) (Entered: 03/20/2017)
89 *MOTION to Seal Document by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Proposed Order)(McDonald, Andrew) *Modified on 3/24/2017 to Unseal Pursuant to Doc. 100 (MAP)*. (Entered: 03/21/2017)
91 NOTICE of Service of Subpoena to Maricopa County Sheriff's Office by Joseph M Arpaio. (McDonald, Andrew) (Entered: 03/22/2017)
92 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 86 MOTION to Continue Trial . (Goldman, Mark) (Entered: 03/23/2017)
93 NOTICE OF ERRATA re: 92 Reply to Response by Joseph M Arpaio.. (Goldman, Mark) (Entered: 03/23/2017)
94 NOTICE OF ERRATA re: 91 Notice (Other) Notice of Service of Subpoena to Maricopa County Sheriff's Office by Joseph M Arpaio.. (McDonald, Andrew) (Entered: 03/23/2017)
95 NOTICE OF ATTORNEY APPEARANCE: Karen Ann Clark appearing for Timothy J Casey as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Clark, Karen) Modified on 3/23/2017 (REW). (Entered: 03/23/2017)
96 MOTION to Quash Subpoena by Timothy J Casey as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Clark, Karen) (Entered: 03/23/2017)
97 *WITHDRAWN pursuant to Doc. 131 −− MOTION Preclude Testimony of Timothy Casey by Joseph M Arpaio. (McDonald, Andrew) Modified on 4/11/2017 (KGM). (Entered: 03/24/2017)
98 MOTION Preclude Alleged "Victim" Testimony by Joseph M Arpaio. (McDonald, Andrew) (Entered: 03/24/2017)

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 17 of 30

03/24/2017 03/24/2017
03/24/2017 03/24/2017 03/24/2017
03/24/2017 03/24/2017
03/24/2017 03/28/2017 03/29/2017 03/29/2017 03/29/2017 03/30/2017 03/31/2017 03/31/2017
03/31/2017

99 Additional Attachments to Main Document re: 96 MOTION to Quash Subpoena by Timothy J Casey as to Joseph M Arpaio. (Clark, Karen) (Entered: 03/24/2017)
100 ORDER denying 89 Motion to Seal as to Joseph M Arpaio (1). The Court's review of Defendant Arpaio's Supplement in Support of Second Motion to Continue does not disclose any privileged information nor can the Court discern any legal basis justifying the sealing. FURTHER ORDERED that Defendant's Motion to Seal, Defendant's Supplement in Support of Second Motion to Continue and this Order shall be placed on the public docket. Signed by Judge Susan R Bolton on 3/24/17.(MAP) (Entered: 03/24/2017)
101 SUPPLEMENT In Support by Joseph M Arpaio to 86 MOTION to Continue Trial filed by Joseph M Arpaio. (MAP) (Entered: 03/24/2017)
102 MOTION Clarify Background and History of the "Civil Contempt" Admission by Joseph M Arpaio. (McDonald, Andrew) (Entered: 03/24/2017)
103 MOTION to Continue Trial Motion for Continuance or to Exclude Documents Disclosed by the Government after March 1, 2017 by Joseph M Arpaio. (Attachments: # 1 Exhibit January 25, 2017 Pretrial Conference Transcript, # 2 Exhibit March 21, 2017 Email, # 3 Exhibit March 22, 2017 Email, # 4 Text of Proposed Order)(Goldman, Mark) (Entered: 03/24/2017)
104 MOTION to Exclude − Defendant Arpaios Motion to Prohibit the Introduction of Constitutionally Protected Campaign Statements by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Goldman, Mark) (Entered: 03/24/2017)
105 MOTION for Hearing re: Voluntariness Hearing and Supplement In Support Of Defendant Arpaios Motion To Clarify Background And History Of The Civil Contempt Admission by Joseph M Arpaio. (Attachments: # 1 Exhibit 04−23−2015 Evidentiary Hearing Transcript, # 2 Exhibit 02−26−2015 Status Conference Hearing transcript, # 3 Text of Proposed Order)(Goldman, Mark) (Entered: 03/24/2017)
106 * MOTION to Stay Proceedings by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Goldman, Mark) *Modified to correct event type on 3/27/2017 (KGM). (Entered: 03/24/2017)
107 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 103 MOTION to Continue Trial Motion for Continuance or to Exclude Documents Disclosed by the Government after March 1, 2017 . (Attachments: # 1 Exhibit A)(Keller, John) (Entered: 03/28/2017)
108 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 104 MOTION to Exclude − Defendant Arpaios Motion to Prohibit the Introduction of Constitutionally Protected Campaign Statements . (Salgado, Victor) (Entered: 03/29/2017)
109 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 98 MOTION Preclude Alleged "Victim" Testimony . (Keller, John) (Entered: 03/29/2017)
110 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 106 MOTION . (Keller, John) (Entered: 03/29/2017)
111 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 96 MOTION to Quash Subpoena, 97 MOTION Preclude Testimony of Timothy Casey . (Attachments: # 1 Exhibit A)(Keller, John) (Entered: 03/30/2017)
112 ORDER denying 86 Motion to Continue Trial filed as to Joseph M Arpaio (1) [see attached Order for details]. Signed by Judge Susan R Bolton on 3/31/17.(MAW) (Entered: 03/31/2017)
113 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 102 MOTION Clarify Background and History of the "Civil Contempt" Admission , 105 MOTION for Hearing re: Voluntariness Hearing and Supplement In Support Of Defendant Arpaios Motion To Clarify Background And History Of The Civil Contempt Admission . (Keller, John) (Entered: 03/31/2017)
114 NOTICE OF ERRATA re: 105 MOTION for Hearing re: Voluntariness Hearing and Supplement In Support Of Defendant Arpaios Motion To Clarify Background And History Of The Civil Contempt Admission by Joseph M Arpaio.. (Goldman, Mark)

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 18 of 30

04/03/2017 04/03/2017 04/03/2017 04/03/2017 04/03/2017 04/04/2017
04/04/2017 04/05/2017
04/05/2017 04/05/2017 04/05/2017 04/06/2017
04/07/2017 04/10/2017

(Entered: 03/31/2017)
115 MOTION to Withdraw as Attorney as to attorney A. Melvin McDonald, Linda K. Tivorsake, Jones Skelton & Hochuli by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Proposed Order Granting JSH Application to Withdraw)(McDonald, Andrew) (Entered: 04/03/2017)
116 MOTION to Expedite Consideration of Jones Skelton & Hochuli Application to Withdraw as Counsel for Defendant Joseph Arpaio by Joseph M Arpaio. (McDonald, Andrew) (Entered: 04/03/2017)
117 NOTICE OF ATTORNEY APPEARANCE: Jeffrey Sinclair Surdakowski appearing for Joseph M Arpaio . (Surdakowski, Jeffrey) (Entered: 04/03/2017)
118 WITNESS LIST by Joseph M Arpaio. (McDonald, Andrew) (Entered: 04/03/2017)
119 EXHIBIT LIST by Joseph M Arpaio. (McDonald, Andrew) (Entered: 04/03/2017)
120 ORDER granting 116 Motion for Accelerated Consideration of Jones, Skelton & Hochuli's Application to Withdraw as Counsel as to Joseph M Arpaio (1). IT IS FURTHER ORDERED setting Hearing re: Jones, Skelton & Hochuli's Application to Withdraw as Counsel for Defendant Joseph M. Arpaio (Doc. 115 ) on April 6, 2017, at 2:00 p.m. (Arizona time). IT IS FURTHER ORDERED that Defense counsel McDonald and Goldman and Defendant Arpaio are to be personally present in the courtroom for said hearing [see attached Order for details]. Signed by Judge Susan R Bolton on 4/4/17.(MAW) (Entered: 04/04/2017)
121 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 103 MOTION to Continue Trial Motion for Continuance or to Exclude Documents Disclosed by the Government after March 1, 2017 . (Surdakowski, Jeffrey) (Entered: 04/04/2017)
122 *Emergency MOTION for Extension of Time to File Replies for Certain Pretrial Motions by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order [Proposed] Order Granting Emergency Motion to Continue Reply Deadlines for Pretrial Motions)(McDonald, Andrew) *Modified to correct event type on 4/5/2017 (KGM). (Entered: 04/05/2017)
123 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 98 MOTION Preclude Alleged "Victim" Testimony . (McDonald, Andrew) (Entered: 04/05/2017)
124 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 106 MOTION TO STAY PROCEEDINGS. (Attachments: # 1 Exhibit Melendres v. Arpaio Opening Brief)(Surdakowski, Jeffrey) (Entered: 04/05/2017)
125 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 104 MOTION to Exclude − Defendant Arpaios Motion to Prohibit the Introduction of Constitutionally Protected Campaign Statements . (Goldman, Mark) (Entered: 04/05/2017)
126 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Motion Hearing as to Joseph M Arpaio held on 4/6/2017. Discussion held. IT IS ORDERED granting Jones, Skelton & Hochuli's Application to Withdraw as Counsel for Defendant Joseph M. Arpaio (Doc. 115 ). Upon oral request of Defense counsel Goldman, the reply deadline regarding Defendant's Motion to Preclude Testimony of Timothy Casey (Doc. 97 ) is extended to April 10, 2017. IT IS ORDERED setting Hearing re: Defendant's Motion to Stay Proceedings (Doc. 106 ) on April 12, 2017, at 10:30 a.m. At the request of Defense counsel, Defendant may supplement his witness and exhibit lists prior to April 12, 2017. LATER: IT IS ORDERED denying as moot Defendant's Emergency Motion to Continue Reply Deadlines for Certain Pretrial Motions (Doc. 122 ) [see attached minute entry for details].(Court Reporter Liz Lemke) Hearing held 2:03 PM to 2:51 PM.(MAW) (Entered: 04/07/2017)
127 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 105 MOTION for Hearing re: Voluntariness Hearing and Supplement In Support Of Defendant Arpaios Motion To Clarify Background And History Of The Civil Contempt Admission . (Surdakowski, Jeffrey) (Entered: 04/07/2017)
128 NOTICE OF ATTORNEY APPEARANCE: Dennis Ira Wilenchik appearing for Joseph M Arpaio . (Wilenchik, Dennis) (Entered: 04/10/2017)

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 19 of 30

04/10/2017 04/10/2017 04/10/2017 04/11/2017 04/11/2017 04/11/2017 04/12/2017 04/12/2017
04/14/2017 04/17/2017 04/17/2017 04/19/2017 04/23/2017

129 Fourth MOTION to Continue Trial by Joseph M Arpaio. (Attachments: # 1 Exhibit Attachment, # 2 Text of Proposed Order Order)(Wilenchik, Dennis) (Entered: 04/10/2017)
130 * MOTION to Dismiss and/or MOTION for Trial by Jury by Joseph M Arpaio. (Wilenchik, Dennis). *Added MOTION on 4/11/2017 (KGM). (Entered: 04/10/2017)
131 *WITHDRAWAL OF MOTION re: 97 MOTION to Preclude Testimony of Timothy Casey by Joseph M Arpaio . (Surdakowski, Jeffrey) *Modified to correct event type on 4/11/2017 (KGM). (Entered: 04/10/2017)
132 ORDER as to Joseph M Arpaio: IT IS ORDERED denying Defendant's Motion to Dismiss or in the Alternative Motion for Trial by Jury (Doc. 130 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 4/11/17.(MAW) (Entered: 04/11/2017)
133 * MOTION for Reconsideration re: 132 Order Denying Motion to Dismiss or in the Alternative for Jury Trial by Joseph M Arpaio. (Wilenchik, Dennis) *Modified to add document number on 4/12/2017 (KGM). (Entered: 04/11/2017)
134 MOTION Staying Proceedings to Allow for the Filing of A Writ of Mandamus Regarding Defendants Motion to Dismiss, or in the Alternative, Motion for Trial by Jury re: 130 MOTION to Dismiss by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Staying Proceedings)(Goldman, Mark) (Entered: 04/11/2017)
135 *AMENDED WITNESS LIST by Joseph M Arpaio. (Goldman, Mark) *Modified to add "amended" on 4/13/2017 (KGM). (Entered: 04/12/2017)
136 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Motion Hearing as to Joseph M Arpaio held on 4/12/2017. Defendant's Motion to Stay Proceedings (Doc. 106 ) is argued to the Court. For reasons as stated on the record, IT IS ORDERED denying Defendant's Motion. Defendant's Fourth Motion to Continue Trial (Doc. 129 ) is discussed. IT IS ORDERED granting Defendant's Motion to Continue. Counsel request additional time to consult their calendars regarding the proposed trial dates. The Court directs counsel to confer and advise the Court no later than 5:00 p.m., April 12, 2017, the trial date that is agreeable to both parties. Defense counsel agrees that in light of the grant of the trial continuance the Motion to Stay Proceedings to Allow For the Filing of a Writ of Mandamus Regarding Defendant's Motion to Dismiss, or in the Alternative, Motion for Trial by Jury (Doc. 134 ) is moot. LATER: Counsel having consulted their calendars and advised the Court of the same, IT IS ORDERED continuing Bench Trial from April 25, 2017, to June 26, 2017, at 9:00 a.m. Trial will be held on June 26 through June 30, 2017, and July 5 through July 7, 2017. (Court Reporter Liz Lemke) Hearing held 10:36 AM to 11:32 AM.(MAW) (Entered: 04/13/2017)
137 NOTICE of Service re: Petition of Writ of Mandamus (filed at the Ninth Circuit) by Joseph M Arpaio. (Attachments: # 1 Exhibit Exhibit A)(Wilenchik, Dennis) Modified to add omitted text on 4/17/2017 (REW). (Entered: 04/14/2017)
138 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 04.06.2017 and 04.12.2017, Judge Susan R Bolton hearing judge(s). (Cataldo, Simon) (Entered: 04/17/2017)
139 TRANSCRIPT REQUEST by Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 4−6−17, 4−12−17, Judge Susan R Bolton hearing judge(s). (Wilenchik, Dennis) (Entered: 04/17/2017)
140 ORDER of USCA re 17−71094 as to Joseph M Arpaio − The petition for a writ of mandamus raises issues that warrant an answer; within 14 days after the date of this order, the real party in interest shall file an answer. The district court, within 14 days after the date of this order, may address the petition if it so desires. (LSP) (Entered: 04/19/2017)
141 NOTICE OF FILING OF OFFICIAL REDACTED TRANSCRIPT of MOTION HEARING proceedings as to Joseph M Arpaio held on 04/06/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 20 of 30

04/23/2017
05/02/2017 05/18/2017 05/19/2017 05/26/2017 05/31/2017 05/31/2017 05/31/2017 05/31/2017 06/13/2017
06/13/2017
06/14/2017 06/14/2017

Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/15/2017. Redacted Transcript Deadline set for 5/24/2017. Release of Transcript Restriction set for 7/24/2017. (RAP) (Entered: 04/28/2017)
142 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING proceedings as to Joseph M Arpaio held on 04/12/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/15/2017. Redacted Transcript Deadline set for 5/24/2017. Release of Transcript Restriction set for 7/24/2017. (RAP) (Entered: 04/28/2017)
144 USCA Case Number re Writ of Mandamus, Ninth Circuit Case number 17−71094. (LSP) (Entered: 05/02/2017)
145 NOTICE Rule 12.3 Notice of Public Authority Defense by Joseph M Arpaio. (Wilenchik, Dennis) (Entered: 05/18/2017)
146 ORDER of USCA denying the Writ of Mandamus as to Joseph M Arpaio re: 17−71094. (LSP) (Entered: 05/19/2017)
147 MOTION to Quash by Timothy Casey as to Joseph M Arpaio. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Clark, Karen) (Entered: 05/26/2017)
148 ORDER denying 104 Motion to Prohibit the Introduction of Constitutionally Protected Campaign Statements as to Joseph M Arpaio (1) [see attached Order details]. Signed by Judge Susan R Bolton on 5/31/17.(MAW) (Entered: 05/31/2017)
149 ORDER denying 133 Motion for Reconsideration of Order Denying "Motion to Dismiss, or in the Alternative for Jury Trial" as to Joseph M Arpaio (1). Signed by Judge Susan R Bolton on 5/31/17.(MAW) (Entered: 05/31/2017)
150 ORDER of USCA denying Petition for Rehearing as to Joseph M Arpaio re: 17−71094. (LSP) (Entered: 05/31/2017)
151 ORDER denying 98 Defendant's Motion to Preclude Alleged "Victim" Testimony as to Joseph M Arpaio (1) [see attached Order for details]. Signed by Judge Susan R Bolton on 5/31/17.(MAW) (Entered: 05/31/2017)
152 ORDER as to Joseph M. Arpaio: IT IS ORDERED granting in part and denying in part Defendant Arpaio's Motion to Clarify Background and History of the "Civil Contempt" Admission (Doc. 102 ). IT IS FURTHER ORDERED denying Motion Requesting a Voluntariness Hearing and Supplement in Support of Defendant Arpaio's Motion to Clarify Background and History of the "Civil Contempt" Admission (Doc. 105 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 6/13/17.(MAW) (Entered: 06/13/2017)
153 *LODGED Proposed Trial Subpoena by Joseph M Arpaio. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.. (Attachments: # 1 Supplement Trial Subpoena, # 2 Supplement Trial Subpoena, # 3 Supplement Trial Subpoena, # 4 Supplement Trial Subpoena, # 5 Supplement Trial Subpoena, # 6 Supplement Trial Subpoena, # 7 Supplement Trial Subpoena, # 8 Supplement Trial Subpoena, # 9 Supplement Trial Subpoena, # 10 Supplement Trial Subpoena, # 11 Supplement Trial Subpoena)(Wilenchik, Dennis) Modified on 6/16/2017 − CD notified attorney's office of procedure − not to issue (MAW). (Entered: 06/13/2017)
154 First MOTION for Leave to Supplement Exhibit List by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Cataldo, Simon) (Entered: 06/14/2017)
155 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio for proceedings held on 6−26−17 − End of Trial, Judge Susan R Bolton hearing judge(s). (Keller, John) (Entered: 06/14/2017)

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 21 of 30

06/15/2017
06/15/2017 06/16/2017 06/16/2017
06/16/2017 06/19/2017 06/19/2017 06/20/2017 06/20/2017
06/20/2017 06/20/2017
06/21/2017 06/21/2017 06/22/2017 06/22/2017

156 NOTICE TO FILER OF DEFICIENCY re: AO435 155 Transcript Request filed by USA. Item 18 − ORDER: (CATEGORY) No category box was checked. FOLLOW−UP ACTION REQUIRED: Please refile with the appropriate box checked under the ORIGINAL + 1 column. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (RAP) (Entered: 06/15/2017)
157 AMENDED TRANSCRIPT REQUEST pursuant to 156 Notice of Deficiency by USA as to Joseph M Arpaio for proceedings held on 6−26−17 −− End of Trial, Judge Susan R Bolton hearing judge(s). (Keller, John) (Entered: 06/15/2017)
158 STIPULATION by USA as to Joseph M Arpaio. (Keller, John) (Entered: 06/16/2017)
159 ORDER as to Joseph M Arpaio: IT IS ORDERED denying Special Appearance of Non−Party Timothy J. Casey and Motion to Quash Subpoena (Doc. 96 ). IT IS FURTHER ORDERED denying Non−Party Timothy J. Casey's Renewed Motion to Quash Subpoena (Doc. 147 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 6/16/17.(MAW) (Entered: 06/16/2017)
160 ORDER granting 154 Government's Motion for Leave to Supplement Exhibit List as to Joseph M Arpaio (1). Signed by Judge Susan R Bolton on 6/16/17.(MAW) (Entered: 06/16/2017)
161 MOTION to Quash Subpoena of U.S. Attorney General by USA as to Joseph M Arpaio. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Keller, John) (Entered: 06/19/2017)
162 TRIAL BRIEF by USA as to Joseph M Arpaio. (Keller, John) (Entered: 06/19/2017)
163 NOTICE OF ATTORNEY APPEARANCE: Vincent Rene Mayr appearing for Joseph M Arpaio . (Mayr, Vincent) (Entered: 06/20/2017)
164 ORDER as to Joseph M Arpaio: The Court is in receipt of the Government's Motion to Quash Defendant's Trial Subpoena to U.S. Attorney General Jefferson Beauregard Sessions (Doc. 161 ). IT IS ORDERED directing Defense counsel to file a response no later than 5:00 p.m., June 21, 2017. The Government shall file its reply no later than Noon, June 23, 2017. Signed by Judge Susan R Bolton on 6/20/17.(MAW) (Entered: 06/20/2017)
165 MOTION for Leave to File Motion to Strike United States Trial Memorandum by Joseph M Arpaio. (Attachments: # 1 Exhibit)(Wilenchik, Dennis) (Entered: 06/20/2017)
166 MOTION for Leave to File Motion to Stay District Court Proceedings Pending Resolution of the Petition for Writ of Mandamus of Joseph M. Arpaio in the Supreme Court of the United States of America by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Order Granting Motion for Leave to File Motion to Stay District Court Proceedings, # 2 Text of Proposed Order Order Staying Proceedings Pending Resolution of the Petition for Writ of Mandamus of Joseph M. Arpaio in the Supreme Court of the U.S.A.)(Mayr, Vincent) (Entered: 06/20/2017)
167 RESPONSE to Motion by Joseph M Arpaio re: 161 MOTION to Quash Subpoena of U.S. Attorney General Defendants Response to Government's Motion to Quash Defendant's Trial Subpoena to US Attonrney General Jefferson Beauregard Sessions. (Wilenchik, Dennis) (Entered: 06/21/2017)
168 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 165 MOTION for Leave to File Motion to Strike United States Trial Memorandum . (Keller, John) (Entered: 06/21/2017)
169 TRANSCRIPT REQUEST by Joseph M Arpaio for proceedings held on June 26, 2017, Judge Susan R Bolton hearing judge(s). (Wilenchik, Dennis) (Entered: 06/22/2017)
170 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 166 MOTION for Leave to File Motion to Stay District Court Proceedings Pending Resolution of the Petition for Writ of Mandamus of Joseph M. Arpaio in the Supreme Court of the United States of America . (Cataldo, Simon) (Entered: 06/22/2017)

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171 MOTION for Leave to File Motion for Change of Venue by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Granting Defendant's Motion for Leave to File Motion for Change of Venue, # 2 Text of Proposed Order Granting Motion for Change of Venue)(Mayr, Vincent) (Entered: 06/22/2017)
172 REPLY TO RESPONSE to Motion by USA as to Joseph M Arpaio re: 161 MOTION to Quash Subpoena of U.S. Attorney General . (Cataldo, Simon) (Entered: 06/22/2017)
173 RESPONSE in Opposition by USA as to Joseph M Arpaio re: 171 MOTION for Leave to File Motion for Change of Venue . (Keller, John) (Entered: 06/23/2017)
174 Additional Attachments to Main Document re: 170 Response in Opposition by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate. (Cataldo, Simon) (Entered: 06/26/2017)
177 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 1] begun on 6/26/2017 as to Joseph M Arpaio (1). Evidence entered. Trial continued to 6/27/2017 [see attached minute entry for details]. (Court Reporter Liz Lemke [a.m.]/ Linda Schroeder [p.m.]) Hearing held 9:02 AM to 4:26 PM. (MAW) (Entered: 06/27/2017)
175 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #1 − A.M. SESSION (Pages 1 through 122, Inclusive.) proceedings as to Joseph M Arpaio held on 06/26/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/18/2017. Redacted Transcript Deadline set for 7/28/2017. Release of Transcript Restriction set for 9/25/2017. (RAP) (Entered: 06/27/2017)
176 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY 1 − P.M. SESSION (Pages 123 through 264, inclusive.) proceedings as to Joseph M Arpaio held on 06/26/2017, before Judge Susan R. Bolton. (Court Reporter: Linda Schroeder). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/18/2017. Redacted Transcript Deadline set for 7/28/2017. Release of Transcript Restriction set for 9/25/2017. (RAP) (Entered: 06/27/2017)
178 ORDER as to Joseph M Arpaio (1): IT IS ORDERED granting Government's Motion to Quash Defendant's Trial Subpoena to U.S. Attorney General Jefferson Beauregard Sessions (Doc. 161 ). IT IS FURTHER ORDERED quashing Defendant's Trial Subpoena to U.S. Attorney General Jefferson Beauregard Sessions [see attached Order for details]. Signed by Judge Susan R Bolton on 6/27/17.(MAW) (Entered: 06/27/2017)
179 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 2] as to Joseph M Arpaio held on 6/27/2017. Evidence entered. Trial continued to 6/28/2017 [see attached minute entry for details]. (Court Reporter Liz Lemke [a.m.] / Linda Schroeder [p.m.]) Hearing held 9:01 AM to 4:19 PM.(MAW) Modified on 6/28/2017 to reflect names of both court reporters (MAW). (Entered: 06/28/2017)
180 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #2 − A.M. SESSION (Pages 265 through 405, Inclusive.) proceedings as to Joseph M Arpaio held on 06/27/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/19/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/26/2017. (RAP) (Entered: 06/28/2017)

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181 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY 2 − P.M. SESSION (Pages 406 through 534, inclusive.) proceedings as to Joseph M Arpaio held on 06/27/2017, before Judge Susan R. Bolton. (Court Reporter: Linda Schroeder). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/19/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/26/2017. (RAP) (Entered: 06/28/2017)
182 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 165 MOTION for Leave to File Motion to Strike United States Trial Memorandum DEFENDANTS REPLY TO GOVERNMENTS RESPONSE TO DEFENDANTS MOTION TO STRIKE UNITED STATES TRIAL MEMORANDUM AND FOR CURATIVE MEASURES. (Mayr, Vincent) (Entered: 06/28/2017)
183 NOTICE of Submission of Specific Objections and Counter−Designations re MacIntyre by Joseph M Arpaio. (Attachments: # 1 Exhibit)(Wilenchik, Dennis) (Entered: 06/28/2017)
186 ORAL MOTION for Directed Verdict by Joseph M Arpaio. (MAW) (Entered: 06/29/2017)
187 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 3] as to Joseph M Arpaio held on 6/28/2017. IT IS ORDERED taking under advisement 186 Oral Motion for Directed Verdict as to Joseph M Arpaio (1). Evidence entered. Trial continued to 6/29/2017 [see attached minute entry for details]. (Court Reporter Liz Lemke [a.m.] / Linda Schroeder [p.m.]) Hearing held 9:01 AM to 4:15 PM.(MAW) (Entered: 06/29/2017)
184 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #3 − A.M. SESSION (Pages 535 through 659, Inclusive.) proceedings as to Joseph M Arpaio held on 06/28/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/20/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/27/2017. (RAP) (Entered: 06/29/2017)
185 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY 3 − P.M. SESSION (Pages 660 through 791, inclusive.) proceedings as to Joseph M Arpaio held on 06/28/2017, before Judge Susan R. Bolton. (Court Reporter: Linda Schroeder). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/20/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/27/2017. (RAP) (Entered: 06/29/2017)
188 MOTION for Acquittal re Statute of Limitations, Section 402 by Joseph M Arpaio. (Wilenchik, Dennis) (Entered: 06/29/2017)
190 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 4] as to Joseph M Arpaio held on 6/29/2017. IT IS ORDERED granting Defendant's Motion for Leave to File Motion to Stay 166 . IT IS FURTHER ORDERED denying Defendant's Motion to Stay District Court Proceedings Pending Resolution of the Petition for Writ of Mandamus of Joseph M. Arpaio in the Supreme Court of the United States of America 166 . Trial continued to 7/6/2017 [see attached minute entry for details]. (Court Reporter Liz Lemke [a.m.] / Linda Schroeder [p.m.]) Hearing held 9:01 AM to 2:44 PM.(MAW) (Entered: 06/30/2017)
189 ORDER as to Joseph M Arpaio (1): IT IS ORDERED granting Defendant's Motion for Leave to File Motion for Change of Venue (Doc. 171 ). IT IS FURTHER ORDERED

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denying Defendant's Motion for Change of Venue (Doc. 171 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 6/30/17.(MAW) (Entered: 06/30/2017)
191 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #4 − A.M. SESSION (Pages 792 through 896, Inclusive.) proceedings as to Joseph M Arpaio held on 06/29/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/21/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/28/2017. (RAP) (Entered: 06/30/2017)
192 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY 4 − P.M. SESSION (Pages 897 through 958, inclusive.) proceedings as to Joseph M Arpaio held on 06/29/2017, before Judge Susan R. Bolton. (Court Reporter: Linda Schroeder). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/21/2017. Redacted Transcript Deadline set for 7/31/2017. Release of Transcript Restriction set for 9/28/2017. (RAP) (Entered: 06/30/2017)
193 ORDER as to Joseph M Arpaio: On June 29, 2017 (Doc. 190 ) Defense counsel requested permission to file written objections to the Government's offer of Exhibits 37A through 37T.1 in lieu of making his objections orally. The request was granted, and Defense counsel was ordered to file the written objections prior to July 5, 2017. Defense counsel having filed no written objections, IT IS ORDERED admitting Exhibits 37A through 37T.1. Signed by Judge Susan R Bolton on 7/5/17.(MAW) (Entered: 07/05/2017)
194 *RESPONSE to Minute Entry 190 Defendants Notice Objections to Exhibits 37a−t by Joseph M Arpaio. (Wilenchik, Dennis) *Modified to correct event type on 7/6/2017 (KAS). (Entered: 07/05/2017)
195 NOTICE Defendants Notice of Submission of Specific Objections and Counter Designations re Defendants Prior Statements by Joseph M Arpaio. (Wilenchik, Dennis) (Entered: 07/05/2017)
196 *AMENDED NOTICE Defendants Amended Noticeof Submission of Specific Objections and Counter Designations re Defendants Prior Statements by Joseph M Arpaio. (Attachments: # 1 Exhibit)(Wilenchik, Dennis) *Modified text on 7/6/2017 (KAS). (Entered: 07/05/2017)
197 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio for proceedings held on 6/26/2017 − 6/29/2017, Judge Susan R Bolton hearing judge(s). (Cataldo, Simon) (Entered: 07/05/2017)
198 MOTION for Reconsideration re: 193 Order by Joseph M Arpaio. (Wilenchik, Dennis) (Entered: 07/05/2017)
199 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Bench Trial [Day 5] as to Joseph M Arpaio completed on 7/6/2017.IT IS ORDERED taking this matter under advisement. At the request of counsel for the Government, counsel may file simultaneous briefs regarding legal authorities (not to exceed 7 pages) no later than 5:00 p.m., (Mountain Standard Time) on July 21, 2017. No responses or replies may be filed. For reasons as stated on the record, IT IS ORDERED denying Defendant's Motion for a Judgment of Acquittal re: Statute of Limitations, Section 402 (Doc. 188 ) [see attached minute entry for details]. (Court Reporter Liz Lemke) Hearing held 9:01 AM to 2:09 PM.(MAW) (Entered: 07/06/2017)
200 WITNESS LIST by USA as to Joseph M Arpaio. (MAW) (Entered: 07/07/2017)
201 WITNESS LIST by Joseph M Arpaio. (MAW) (Entered: 07/07/2017)

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202 EXHIBIT LIST by USA as to Joseph M Arpaio. (MAW) (Entered: 07/07/2017)
203 EXHIBIT LIST by Joseph M Arpaio. (MAW) (Entered: 07/07/2017)
204 MINUTE ORDER RE EXHIBITS as to Joseph M Arpaio: IT IS HEREBY ORDERED that the exhibits marked but not admitted in the above−entitled case at the time of the trial/hearing are returned to respective counsel. Counsel/agents are directed to retain custody of the exhibits until the case has been completely terminated, including all appeals. (MAW) (Entered: 07/07/2017)
205 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of BENCH TRIAL − DAY #5 (Pages 959 through 1112, Inclusive.) proceedings as to Joseph M Arpaio held on 07/06/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/27/2017. Redacted Transcript Deadline set for 8/7/2017. Release of Transcript Restriction set for 10/4/2017. (RAP) (Entered: 07/18/2017)
206 MEMORANDUM by Joseph M Arpaio re: 199 Order on Motion for Acquittal, Bench Trial − Completed . (Wilenchik, Dennis) (Entered: 07/21/2017)
207 MEMORANDUM by USA as to Joseph M Arpaio . (Cataldo, Simon) (Entered: 07/21/2017)
208 ORDER as to Joseph M Arpaio: IT IS ORDERED denying as moot Defendant's Motion for Leave to File Motion to Strike "United States' Trial Memorandum" (Doc. 165 ). IT IS FURTHER ORDERED denying as moot Defendant's Motion to Strike "United States' Trial Memorandum" (Doc. [165−1]) [see attached Order for details]. Signed by Judge Susan R Bolton on 7/25/17.(MAW) (Entered: 07/25/2017)
209 TRANSCRIPT REQUEST by Richard K. Walker of Walker & Peskind, PLLC as to Joseph M Arpaio for proceedings held on 06/26/2017−06/29/2017, Judge Susan R Bolton hearing judge(s). (RAP) (Entered: 07/27/2017)
210 ORDER as to Joseph M Arpaio: IT IS ORDERED finding Defendant guilty of criminal contempt. IT IS FURTHER ORDERED setting Sentencing for October 5, 2017 at 10:00 a.m. IT IS FURTHER ORDERED directing the Probation Department to prepare a presentence investigation report [see attached Order for details]. Signed by Judge Susan R Bolton on 7/31/17.(MAW) (Entered: 07/31/2017)
211 ORDER as to Joseph M Arpaio (1): At the bench trial held in this matter the Court took Government's offer of Exhibit 38 and Defendant's offer of Exhibit 183 under advisement. IT IS ORDERED admitting Exhibit 183. IT IS FURTHER ORDERED sustaining Defense counsel's objection to the admission of Exhibit 38. IT IS FURTHER ORDERED denying Defendant's oral Rule 29 Motion for Judgment of Acquittal (Doc. 186 ). Signed by Judge Susan R Bolton on 8/1/17.(MAW) (Entered: 08/01/2017)
212 MINUTE ORDER as to Joseph M Arpaio: On July 31, 2017, an e−mail was sent to all the Assistant United States Attorneys and Defense attorneys who appeared in this case to inquire about counsels' availability for a telephonic conference. AUSA John Keller and Defense counsel Dennis Wilenchik have responded to the e−mail advising of their availability on Thursday, August 3, 2017, at 9:00 am. IT IS ORDERED setting Telephonic Conference on August 3, 2017, at 9:00 a.m. before Judge Susan R. Bolton. The Court will initiate the telephonic conference call. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAW) (Entered: 08/01/2017)
213 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Telephonic Conference as to Joseph M Arpaio held on 8/3/2017. Discussion held. If Defendant wishes to waive the presentence investigation report, IT IS ORDERED that a waiver, signed by both counsel and Defendant, shall be filed no later than August 10, 2017. If no waiver is filed, the presentence investigation report process will proceed. The parties are advised of General Order 15−12, which states that no more than 10 character letters shall be submitted by defense counsel in a criminal case, IT IS ORDERED that if the Government was intending to offer letters for sentencing the

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Government is also limited to 10 letters. All letters shall be submitted to the Court [not filed electronically] by September 29, 2017. IT IS FURTHER ORDERED that any motions for upward departure or downward departure and any sentencing memoranda shall be filed no later than September 29, 2017. IT IS ORDERED that not later than September 29, 2017, the following information shall be filed with the Court: the name(s) of the witness(es) either party intends to call at sentencing and the number of other individuals each party intends to have make a statement at sentencing. Each party is limited to 10 individuals who will address the Court either by a statement or through testimony at sentencing [see attached minute entry for details]. (Court Reporter Liz Lemke) Hearing held 9:20 AM to 9:44 AM.(MAW) (Entered: 08/03/2017)
214 ORDER as to Joseph M Arpaio: IT IS ORDERED denying 198 Defendant's Motion for Reconsideration of Court's Order Dated July 5, 2017 [Doc. 193] [see attached Order for details]. Signed by Judge Susan R Bolton on 8/3/17.(MAW) (Entered: 08/03/2017)
215 TRANSCRIPT REQUEST by Joseph M Arpaio for proceedings held on 08/03/2017, Judge Susan R Bolton hearing judge(s). (Goldman, Mark) (Entered: 08/03/2017)
219 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of TELEPHONIC CONFERENCE proceedings as to Joseph M Arpaio held on 08/03/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/28/2017. Redacted Transcript Deadline set for 9/7/2017. Release of Transcript Restriction set for 11/6/2017. (RAP) (Entered: 08/16/2017)
216 NOTICE Defendant's Waiver of Presentence Investigation Report by Joseph M Arpaio. (Goldman, Mark) (Entered: 08/10/2017)
217 MOTION for New Trial Defendants Motion for New Trial and/or to Vacate the Judgment by Joseph M Arpaio. (Wilenchik, John) Modified on 10/5/2017 (MAW). (Entered: 08/14/2017)
218 MOTION for Acquittal Defendants Motion for a Judgment of Acquittal by Joseph M Arpaio. (Attachments: # 1 Exhibit Exhibit A)(Wilenchik, John) Modified on 10/5/2017 (MAW). (Entered: 08/14/2017)
220 MOTION for Vacatur and Dismissal With Prejudice by Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Wilenchik, Dennis) Modified on 10/5/2017 (MAW). Modified on 10/5/2017 (MAW). (Entered: 08/28/2017)
221 Executive Grant of Clemency (Full and Unconditional Pardon) by President Donald J. Trump on 8−25−17 issued as to Joseph M. Arpaio for his conviction of Section 401(3), Title 18, United States Code (Docket No. 2:16−CR−1012−SRB) and for any other offenses under Chapter 21 of Title 18, United States Code that might arise, or be charged, in connection with Melendres v. Arpaio (Docket No. 2:07−CV−02513−GMS). (SJF) (Entered: 08/28/2017)
222 ORDER as to Joseph M Arpaio: IT IS ORDERED vacating the October 5, 2017 sentencing and the September 29, 2017 deadline for filing sentencing memoranda, motions for departure, letters, and the names of witnesses to testify or make statements. IT IS FURTHER ORDERED that the Government shall not file any response to the pending Motions for New Trial and For a Judgment of Acquittal (Docs. 217 & 218 ) pending further Order of the Court. IT IS FURTHER ORDERED setting oral argument on Defendant's Motion for Vacatur and Dismissal With Prejudice (Doc. 220 ) on Wednesday, October 4, 2017, at 10:00 a.m. [see attached Order for details]. Signed by Judge Susan R Bolton on 8/29/17.(MAW) (Entered: 08/29/2017)
***Remark as to Amicus party Roderick & Solange MacArthur Justice Center re: pro hac vice motions granted for David M Shapiro and Locke E Bowman on behalf of Amicus party. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/08/2017)

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223 *First MOTION for Leave to File Amicus Curiae Brief Regarding Arpaio Pardon by Roderick & Solange MacArthur Justice Center as to Joseph M Arpaio. (Attachments: # 1 (PROPOSED) Amicus Brief of Roderick and Solange MacArthur Justice Center in Opposition to Arpaio's Motion to Vacate Conviction)(Shapiro, David) *Modified on 9/12/2017 to correct motion type (ATD). (Entered: 09/11/2017)
***Remark as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate re: Pro hac motions for admission granted on behalf of Louise Renne and Dennis Aftergut on behalf of amicus party Coalition to Preserve Protect and Defend: (BAS) (Entered: 09/11/2017)
224 ORDER as to Joseph M Arpaio: On September 11, 2017, counsel for Amicus Curiae Roderick and Solange MacArthur Justice Center filed a Motion for Leave to File Amicus Curiae Brief Regarding Arpaio Pardon (Doc. 223 ). IT IS ORDERED that the motion will be denied within 3 days of the date of this order if counsel does not comply with the ECF Administrative Policies and Procedures Manual, Section G, specifically, subparagraph 1b. Signed by Judge Susan R Bolton on 9/11/17.(MAW) (Entered: 09/11/2017)
225 RESPONSE to Motion by USA as to Joseph M Arpaio re: 220 MOTION to Dismiss Complaint . (Keller, John) (Entered: 09/11/2017)
226 *Additional Attachments to Main Document re: 223 First MOTION for Leave to FileAmicus Curiae Brief Regarding Arpaio Pardon (Proposed Order) by Roderick & Solange MacArthur Justice Center as to Joseph M Arpaio. (Shapiro, David) *Modified on 9/12/2017 to clarify defendant the filing pertains to (ATD). (Entered: 09/11/2017)
227 *MOTION to File Amicus Brief Brief of Amici Curiae and Coalition to Preserve, Protect and Defend In Opposition to Motion of Defendant Joseph Arpaio for Vacatur and Dismissal With Prejudice by Martin Redish, Free Speech for People, Coalition to Preserve Protect and Defend as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit)(Piccarreta, Michael) *Modified on 9/12/2017 to correct motion type and add additional filers (ATD). (Entered: 09/11/2017)
228 MOTION to File Amicus Brief as to attorney Jean−Jacques Cabou by Protect Democracy Project Incorporated as to Joseph M Arpaio. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 Text of Proposed Order Proposed Order)(Cabou, Jean−Jacques) (Entered: 09/11/2017)
229 *MOTION to File Amicus Brief ERWIN CHEMERINSKY, MICHAEL E. TIGAR AND JANE B. TIGAR'S MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE by Jane B Tigar, Michael E Tigar, Erwin Chemerinsky as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(Hammond, Larry) *Modified on 9/12/2017 to correct motion type (ATD). (Entered: 09/11/2017)
230 *FILED at (Doc. 245 ) LODGED Proposed Memorandum of Amici Curiae Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar by Jane B Tigar, Michael E Tigar, Erwin Chemerinsky as to Joseph M Arpaio re: 229 MOTION for Leave to File ERWIN CHEMERINSKY, MICHAEL E. TIGAR AND JANE B. TIGAR'S MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.. (Hammond, Larry) Modified on 10/5/2017 (DXD). (Entered: 09/11/2017)
231 *MOTION to File Supplemental Amicus Brief in Support of Appointment of a Private Attorney to Prosecute Defendant's Criminal Contempt as to attorney Jean−Jacques Cabou by Protect Democracy Project Incorporated as to Joseph M Arpaio. (Attachments: # 1 Motion for Leave to File Supplemental Brief of Amici Curiae in Support of Appointment of Private Attorney to Prosecute Defendant's Criminal Contempt, # 2 Proposed Order)(Cabou, Jean−Jacques) *Modified text for clarification on 9/12/2017 (ATD). (Entered: 09/11/2017)
232 RESPONSE to Motion by Joseph M Arpaio re: 229 MOTION to File Amicus Brief, 223 MOTION for Leave to File Amicus Brief, 231 MOTION to File Amicus Brief as to attorney Jean−Jacques Cabou, 228 MOTION to File Amicus Brief as to attorney Jean−Jacques Cabou, 227 MOTION to File Amicus Brief Defendants Response to Motions for Leave or in the Alternative Motion to Strike. (Wilenchik, Dennis) (Entered: 09/12/2017)

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 28 of 30

09/13/2017 09/14/2017
09/14/2017 09/15/2017
09/20/2017 09/21/2017 09/25/2017 09/27/2017 09/27/2017
09/28/2017 09/28/2017 10/04/2017 10/04/2017 10/04/2017

233 MOTION to File Amicus Brief as to attorney Kathleen E. Brody by Ortega Melendres Plaintiffs as to Joseph M Arpaio. (Attachments: # 1 Proposed Amici Curiae Brief, # 2 Text of Proposed Order)(Brody, Kathleen) (Entered: 09/13/2017)
234 ORDER as to Joseph M Arpaio: IT IS ORDERED that the Government file a Supplemental Response, not to exceed five pages in length, addressing the extent to which vacatur should be granted, if at all, given both the absence of an entry of judgment and the authority provided in this Order. The Government shall file and serve its Supplemental Response no later than September 21, 2017. Defendant may file a Reply [see attached Order for details]. Signed by Judge Susan R Bolton on 9/14/17.(MAW) (Entered: 09/14/2017)
235 RESPONSE to Motion by Joseph M Arpaio re: 233 MOTION to File Amicus Brief as to attorney Kathleen E. Brody Defendants Response to Motion for Leave By Ortega Melendres Plaintiffs. (Wilenchik, Dennis) (Entered: 09/14/2017)
***Remark as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate re: Pro hac vice motion granted for Ronald A Fein on behalf of amici curiae parties Martin Redish, Free Speech for People and CPPD: This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/15/2017)
***Remark as to amicus party Certain Members of Congress of the United States re: Pro hac admission granted for R Bradley Miller on behalf of amicus party. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/20/2017)
236 RESPONSE to Motion by USA as to Joseph M Arpaio re: 220 MOTION to Dismiss Complaint . (Keller, John) (Entered: 09/21/2017)
237 REPLY TO RESPONSE to Motion by Joseph M Arpaio re: 220 MOTION to Dismiss Complaint Defendants Reply in Support of Motion for Vacatur and Dismissal with Prejudice. (Wilenchik, John) (Entered: 09/25/2017)
238 MOTION to File Amicus Brief by Certain Members of Congress of the United States as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order Proposed Order)(Scharff, Spencer) (Entered: 09/27/2017)
239 *FILED at (Doc. 246 ) LODGED Proposed Memorandum of Amici Curiae Certain Members of Congress in Opposition to Defendants Motion for Vacatur and Dismissal with Prejudice by Certain Members of Congress of the United States as to Joseph M Arpaio re: 238 MOTION to File Amicus Brief . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.. (Scharff, Spencer) Modified on 10/5/2017 (DXD). (Entered: 09/27/2017)
***Remark as to Pro hac vice motion granted for Stanley Young on behalf of Amici Melendres Ortega: This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/28/2017)
240 RESPONSE to Motion by Joseph M Arpaio re: 238 MOTION to File Amicus Brief Defendants Response to Certain Members of Congress on the United States Motion for Leave to Participate as Amici Curaie. (Wilenchik, Dennis) (Entered: 09/28/2017)
NOTICE OF REQUEST FOR E−NOTICES by Stephen Montoya. (Montoya, Stephen) (Entered: 10/04/2017)
241 TRANSCRIPT REQUEST by Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on October 4, 2017, Judge Susan R Bolton hearing judge(s). (Cabou, Jean−Jacques) (Entered: 10/04/2017)
243 MINUTE ENTRY for proceedings held before Judge Susan R Bolton: Motion Hearing as to Joseph M. Arpaio held on 10/4/2017 Re: 220 Defendant's Motion for Vacatur and Dismissal With Prejudice. IT IS ORDERED granting the Motions to File Briefs as Amici Curiae (Docs. 227 , 228 , 229 , 233 and 238 ). IT IS ORDERED granting the Motion for Leave to File Supplemental Brief of Amici Curiae in Support of Appointment of a Private Attorney to Prosecute Defendant's Criminal Contempt (Doc. 231 but denying the request to appoint a private attorney. For the reasons stated on the record, the Court finds that the pardon is valid. Argument held on Defendant's motion.

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 29 of 30

10/04/2017 10/04/2017
10/05/2017 10/05/2017 10/05/2017 10/06/2017 10/10/2017 10/12/2017 10/16/2017
10/16/2017
10/16/2017 10/19/2017 10/19/2017

IT IS ORDERED that this action for criminal contempt is dismissed with prejudice. IT IS FURTHER ORDERED taking under advisement whether the Court will enter any further orders [see attached minute entry for details]. (Court Reporter Liz Lemke) Hearing held 10:01 AM to 10:31 AM.(MAW) (Entered: 10/05/2017)
244 MINUTE ORDER RE: EXHIBITS as to Joseph M Arpaio: IT IS HEREBY ORDERED that the exhibits marked and admitted in the above−entitled case at the time of the trial/hearing are returned to respective counsel [see attached minute order for details]. (MAW) (Entered: 10/05/2017)
247 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of MOTION HEARING proceedings as to Joseph M Arpaio held on 10/04/2017, before Judge Susan R. Bolton. (Court Reporter: Elizabeth A. Lemke). The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Court Reporter/Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/25/2017. Redacted Transcript Deadline set for 11/6/2017. Release of Transcript Restriction set for 1/2/2018. (RAP) (Entered: 10/10/2017)
242 TRANSCRIPT REQUEST by Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on October 4, 2017, Judge Susan R Bolton hearing judge(s). (Brody, Kathleen) (Entered: 10/05/2017)
245 AMICUS Brief and Memorandum by Jane B Tigar, Michael E Tigar, Erwin Chemerinsky as to Joseph M Arpaio. (DXD) (Entered: 10/05/2017)
246 AMICUS Brief of Certain Members of Congress in Opposition to Defendant's Motion for Vacatur and Dismissal with Prejudice by Joseph M Arpaio. (DXD) (Entered: 10/05/2017)
***Remark as to Amici Curaie Ortega Melendres, et al. − Pro hac vice motion granted for Cecillia Wang on behalf of Amici Curaie. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/06/2017)
***Remark as to Amicai Curi Ortega Melendres − Pro hac vice motion granted for Julia A Gomez Hernandez on behalf of amicai curi. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/10/2017)
248 TRANSCRIPT REQUEST by USA as to Joseph M Arpaio, Gerard Sheridan, Steven R Bailey, Michele M Iafrate for proceedings held on 10/04/2017, Judge Susan R Bolton hearing judge(s). (Cataldo, Simon) (Entered: 10/12/2017)
249 *MOTION for Leave to File Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal by Protect Democracy Project Incorporated as to Joseph M Arpaio. (Attachments: # 1 Text of Proposed Order)(May, Katherine) *Modified to remove Ex−Parte designation per attorney's request on 10/16/2017 (EJA). (Entered: 10/16/2017)
250 *FILED at Doc. 256 *LODGED Proposed Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal by Protect Democracy Project Incorporated as to Joseph M Arpaio re: 249 MOTION for Leave to File Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted.. (May, Katherine) *Modified on 11/1/2017 (MAP).* (Entered: 10/16/2017)
***Remark as Pro hac vice motion granted for Katrina L Eiland on behalf of Amici Curaie Ortega Melendres. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 10/16/2017)
251 ORDER as to Joseph M Arpaio (1): IT IS ORDERED denying Defendant's Motion for Vacatur and Dismissal with Prejudice (Doc. 220 ) insofar as it seeks relief beyond dismissal with prejudice [see attached Order for details]. Signed by Judge Susan R Bolton on 10/19/17.(MAW) (Entered: 10/19/2017)
252 *NOTICE OF APPEAL to 9th Circuit Court of Appeals by Joseph M Arpaio as to Joseph M Arpaio re: 251 Order on Motion to Vacate. Filing fee received: $ 505.00, receipt number 0970−14778025. (Wilenchik, John) *Modified to reflect document

Case: 2:16-cr-1012 As of: 03/10/2019 02:26 PM MST 30 of 30

10/20/2017 10/24/2017 11/01/2017
11/01/2017 11/02/2017 01/18/2018 04/06/2018

filed as to incorrect defendants on 10/20/2017 (DXD). (Entered: 10/19/2017)
253 USCA Case Number as to Joseph M Arpaio re: 252 Notice of Appeal. Case number 17−10448, Ninth Circuit. (DXD) (Entered: 10/20/2017)
254 TRANSCRIPT REQUEST Oral Argument by Joseph M Arpaio for proceedings held on 10/04/2017, Judge Susan R Bolton hearing judge(s). (Goldman, Mark) (Entered: 10/24/2017)
255 ORDER as to Joseph M Arpaio: IT IS ORDERED granting Amici's Motion for Leave to File a Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal (Doc. 249 ). IT IS FURTHER ORDERED denying Amici's Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal (Doc. 250 ) [see attached Order for details]. Signed by Judge Susan R Bolton on 11/1/17.(MAW) (Entered: 11/01/2017)
256 Brief of Amici Curiae in Support of Appointment of Rule 42 Attorney to Prosecute Appeal by Protect Democracy Project Incorporated as to Joseph M Arpaio. (MAP) (Entered: 11/01/2017)
***Remark as to Amicus party Protect Democracy Project Incorporated − re: Pro hac vice motion granted on behalf of Justin G Florence: This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 11/02/2017)
***Remark as to Protect Democracy Project Incorporated re: Pro hac vice motion granted for Phil Spector. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 01/18/2018)
***Remark as to Amicus party Protect Democracy Project Incorporated re: Ian M Bassin − pro hac vice motion granted. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 04/06/2018)

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Manuel de Jesus Ortega Melendres, on 9 behalf of himself and all others similarly 10 situated; et al.

11

Plaintiffs,

12 and

13 United States of America,

14

Plaintiff-Intervenor,

No. CV-07-2513-PHX-GMS ORDER RE CRIMINAL CONTEMPT

15 v.

16 Joseph M. Arpaio, in his official capacity as Sheriff of Maricopa County, Arizona; et al.
17 Defendants.
18

19

This Order is entered pursuant to 18 U.S.C. § 401 and Rule 42 of the Federal

20 Rules of Criminal Procedure.

21

For the reasons set forth below, the Court refers Sheriff Joseph M. Arpaio to

22 another Judge of this Court, to be randomly selected by the Clerk’s office, for a

23 determination of whether he should be held in criminal contempt for: (1) the violation of

24 this Court’s preliminary injunction of December 23, 2011; (2) failing to disclose all

25 materials that related to the Montgomery investigation in violation of: (a) this Court’s

26 specific order entered orally on April 23, 2015 (Doc. 1027 at Tr. 625–60), and (b) this

27 Court’s orders to comply with the Monitor’s requests for documents including the

28 Monitor’s follow-up ITR (investigative team requests) for this material, (Doc. 606 ¶ 145;

1 Doc. 700 at Tr. 71–73; Doc. 795 at 20); and/or (3) his intentional failure to comply with

2 this Court’s order entered orally on April 23, 2015 that he personally direct the

3 preservation and production of the Montgomery records to the Monitor, (Doc. 1027 at Tr.

4 625–60).

5

Chief Deputy Sheridan is likewise referred to the same Judge for a determination

6 of whether he should be held in criminal contempt for: (1) concealing from the Monitor,

7 the parties, and this Court, the existence of the 1459 IDs and the related PSB

8 investigation into them in violation of this Court’s orders of October 2, 2013, (Doc. 606

9 ¶¶ 145–47), May 14, 2014, (Doc. 700 at Tr. 71–77), November 20, 2014, (Doc. 795 at

10 16–21), December 9, 2014, (Doc. 825 at 2), and February 12, 2015, (Doc. 881 at 2); and

11 (2) intentionally withholding the 50 Montgomery hard drives from production to the

12 Court, (Doc. 1027 at Tr. 625–60).

13

Captain Bailey is also referred to the same Judge for a determination of whether he

14 should be held in criminal contempt for concealing from the Monitor, the parties, and this

15 Court the existence of the 1459 IDs and the related PSB investigation into them in

16 violation of this Court’s orders of October 2, 2013, (Doc. 606 ¶ 145), May 14, 2014,

17 (Doc. 700 at Tr. 71–73), November 20, 2014, (Doc. 795 at 16–21), December 9, 2014,

18 (Doc. 825 at 2), and February 12, 2015, (Doc. 881 at 2).

19

Michele Iafrate is likewise referred to the same Judge for a determination of

20 whether she should be held in criminal contempt for concealing from the Monitor, the

21 parties, and this Court the existence of the 1459 IDs and the related PSB investigation

22 into them, and her instructions to her client to misstate facts as to the IDs in violation of

23 this Court’s orders of October 2, 2013, (Doc. 606 ¶ 145), May 14, 2014, (Doc. 700 at Tr.

24 71–73), November 20, 2014, (Doc. 795 at 16–21), December 9, 2014, (Doc. 825 at 2),

25 and February 12, 2015, (Doc. 881 at 2).

26

To the extent that Chief Deputy Sheridan and/or Captain Bailey may have

27 committed other contemptuous acts, the Court determines either that the remedies

28 imposed in the civil contempt order will adequately serve the purposes of this Court or

- 2 -

1 that referral of the matter to other agencies will provide the most appropriate resolution to

2 the matter.

3

The Court has further determined, for the reasons set forth below, that it is not

4 appropriate to prosecute as criminal contempt the multiple intentional false statements

5 made by Sheriff Arpaio and Chief Deputy Sheridan. The United States Attorney is

6 presumably already aware of this Court’s findings of fact with respect to Sheriff Arpaio

7 and Chief Deputy Sheridan’s untruthful testimony. Whether any resulting criminal

8 prosecutions are merited is a matter appropriately left to the discretion of the Department

9 of Justice.

10

I. ANALYSIS

11

Criminal contempt serves to vindicate the Court’s authority by punishing the

12 intentional disregard of that authority. Lasar v. Ford Motor Co., 399 F.3d 1101, 1110

13 (9th Cir. 2005) (citation omitted); United States v. Asay, 614 F.2d 655, 659 (9th Cir.

14 1980). Non-parties can be prosecuted for criminal contempt if they are under a parties’

15 control and have actual notice and knowledge of and are bound by the Orders that have

16 been violated. United States v. Baker, 641 F.2d 1314, 1314–15 (9th Cir. 1981). If

17 appropriate, a court can impose both criminal and civil contempt on the same party for

18 the same conduct. United States v. Rose, 806 F.2d 931, 933 (9thCir. 1986). Generally, 19 however, a trial court should do so only if the civil remedy is deemed inadequate.1 Young

20 v. U.S. ex rel. Vuiton et Fils S.A., 481 U.S. 787, 801 (1987).

21

The need for a criminal contempt order must be considered in the context of each

22 case, taking into account such matters as the surrounding controversy, prior warnings

23 from the trial judge, and the conduct of the contemnor. See Hawk v. Al Cardoza, 575

24 F.2d 732, 735 (9thCir. 1978). To impose criminal contempt on a party for the violation

25 of a court order, the order must be clear and definite and the contemnor must willfully

26 disobey it. See Rose, 806 F.2d at 933.

27

28

1 The Court does not suggest whether this prosecution should be charged as the

equivalent of a misdemeanor or a felony offence.

- 3 -

1 A. Sheriff Joseph M. Arpaio

2

1. Violation of this Court’s December 2011 Preliminary Injunction

3

Based on the extensive testimony set forth at the hearing, the Court has already

4 concluded under the civil standard of proof that Sheriff Arpaio knew of the December

5 2011 preliminary injunction and intentionally disobeyed it. (See Doc. 1677 ¶¶ 1–65.)

6

In brief summary, in December 2011, still well prior to trial, this Court entered a

7 preliminary injunction prohibiting the Defendants from enforcing federal civil

8 immigration law or from detaining persons they believed to be in the country without

9 authorization but against whom they had no state charges. It also ordered that the mere

10 fact that someone was in the country without authorization did not provide, without more

11 facts, reasonable suspicion or probable cause to believe that such a person had violated

12 state law.

13

Sheriff Arpaio admitted that he knew about the preliminary injunction upon its

14 issuance and thereafter. (Id. ¶ 15.) Sheriff Arpaio’s attorney stated to the press that the

15 Sheriff disagreed with the Order and would appeal it, but would also comply with it in

16 the meantime. (Id. ¶ 14.) Sheriff Arpaio’s attorney and members of his command staff

17 repeatedly advised him on what was necessary to comply with the Order. However, the

18 Court found that Sheriff Arpaio intentionally did nothing to implement that Order. (Id.

19 ¶ 65.) The MCSO continued to stop and t\detain persons based on factors including their

20 race, (id. at ¶ 161), and frequently arrested and delivered such persons to ICE when there

21 were no state charges to bring against them, (id. ¶¶ 157–61). Sheriff Arpaio did so based

22 on the notoriety he received for, and the campaign donations he received because of, his

23 immigration enforcement activity. (Id. ¶¶ 58–60.)

24

Since Sheriff Arpaio had previously taken some of his arrestees to the Border

25 Patrol when ICE refused to take them, he determined that referral to the Border Patrol

26 would serve as his “back-up” plan for all similar circumstances going forward. (Id.

27 ¶¶ 40–41.) Sheriff Arpaio’s failure to comply with the preliminary injunction continued

28 even after the Sheriff’s appeal to the Ninth Circuit Court of Appeals was denied months

- 4 -

1 later. (Id. ¶¶ 42–44.) When Plaintiffs accused Sheriff Arpaio of violating the Order, he

2 falsely told his lawyers that he had been directed by federal agencies to turn over persons

3 whom he had stopped but for whom he had no state charges. (Id. ¶¶ 50–52.)

4 Nevertheless, Sheriff Arpaio’s lawyer still advised him that he was likely operating in

5 violation of the preliminary injunction. (Id. ¶ 53.) Although Sheriff Arpaio told counsel

6 on multiple occasions either that the MCSO was operating in compliance with the Order,

7 or that he would revise his practices so that the MCSO was operating in compliance with

8 the Order, he continued to direct his deputies to arrest and deliver unauthorized persons

9 to ICE or the Border Patrol. (Id. ¶¶ 55–57.)

10

It has not been possible for the MCSO to track the number of persons who were

11 stopped or arrested because of Sheriff Arpaio’s violation of this Order over the ensuing

12 17-months that it was ignored. (See id. ¶¶ 157–63.)

13

2. Failure to Produce the Montgomery Material

14

Throughout this case, the Court has reminded Sheriff Arpaio that he is the party to

15 this lawsuit, not his subordinates, and thus the failure of his subordinates to carry out this

16 Court’s orders would amount to his own failure to do so. (See Doc. 700 at Tr. 71–73;

17 Doc. 1027 at Tr. 632.) When Sheriff Arpaio gave his April 23, 2015 testimony on the

18 Montgomery investigation, he testified that the MCSO possessed some documents and

19 materials pertaining to it. To assign personal responsibility for the preservation and

20 production of such materials, including all electronic data, the Court ordered the Sheriff

21 to personally take charge of preserving, retrieving and disclosing the documents.

22

23

THE COURT: . . . I want you to direct your people to put a hold on it

immediately and preserve it. And that includes any documentation or

24

numbers that would relate to Mr. Montgomery’s confidential status. You

25

understand that? [ARPAIO]: Your Honor, are you referring to this investigation with the

26

monitors and ---

THE COURT: No, no. I’m referring to the investigation that Mr.

27

Montgomery was undertaking with Mr. Mackiewicz, Mr. Anglin, Mr.

28

Zullo, anybody else from your staff, anybody else from the MCSO, or

anyone else from the posse. I want all records that in any way relate to it,

- 5 -

1

all electronic data or anything else, or the financing, funding of that

2

operation, all phone records, e-mails, reports, I want it all preserved. And I

think I will send the monitor to begin taking possession of those records

3

and we’ll do it confidentially, imminently. But I don’t want in the interim

4

any of those records lost inadvertently or otherwise. You understand what I’m saying?

5

[ARPAIO]: Yes.

6

THE COURT: And you’ll so direct your people? [ARPAIO]: Yes.

7

THE COURT: All right. Thank you, sir.

8 (Doc. 1677 ¶ 351.)

9

Despite this Court’s order that Sheriff Arpaio personally direct compliance with

10 this Court’s preservation and production orders with regard to the Montgomery materials,

11 the Sheriff failed to do so. He subsequently testified that he “wasn’t personally involved”

12 with this Court’s order regarding the preservation and the production of the Montgomery

13 materials and that he did not recall having any discussion with anyone about the order.

14 (Id. ¶¶ 354–55; see also Doc. 1417 at Tr. 1589 (Chief Deputy Sheridan’s assumption that

15 Sheriff Arpaio intended to delegate to him the production of the Montgomery materials).)

16

There is probable cause to believe that the Sheriff intentionally failed to produce

17 all of the documents he had in response to this Court’s order. Specifically, at the time the

18 Court issued the above order, the Sheriff knew that Montgomery had given the MCSO 50

19 hard drives that Montgomery claimed to be the master database of records that he had

20 supposedly purloined from the CIA. (Doc. 1677 ¶ 353; Doc. 1455 at Tr. 2064; Doc. 1457

21 at Tr. 2331–32; Doc. 1458 at Tr. 2561–63.) To reveal those hard drives would have

22 revealed that they did not contain the materials that Montgomery had described. It also

23 may have called into question some of Sheriff Arpaio’s other ongoing investigative

24 activities in which he had partnered with Montgomery, such as the alleged illegitimacy of

25 President Barack Obama’s birth certificate. (See Doc. 1677 ¶¶ 360–63.) It would also

26 reveal that the MCSO actually took possession of, and intended to use, material that it

27 believed to have been stolen from the CIA.

28

Neither Sheriff Arpaio nor anyone else at the MCSO disclosed the hard drives in

- 6 -

1 response to this Court’s order or the Monitor’s subsequent follow-up ITRs. Only months

2 later, during the July 2015 site visit, did the Monitor independently discover the existence

3 of the hard drives, which had been placed in a locker in the property and evidence

4 department under a Departmental Report number designed to shield their disclosure. (Id

5 ¶ 356.) This failure to produce the 50 hard drives violates this Court’s April 23, 2015

6 directive requiring such production. It further violates orders requiring the Sheriff and

7 the MCSO to comply with all document requests made by the Monitor as well as the

8 directive that the Sheriff cooperate with the Monitor and withhold no information from

9 him. (Doc. 700 at Tr. 71–73.)

10

The Sheriff now claims that he “wasn’t personally involved” in implementing the

11 Court’s order. (Doc. 1677 ¶¶ 354–55.) The circumstances provide probable cause to

12 believe otherwise. Even if it were as the Sheriff claims, however, the Sheriff still

13 violated this Court’s orders to personally direct the preservation and production of all

14 such documents.

15

3. The Sheriff and Chief Deputy’s False Testimony

16

Perjury is a crime. 18 U.S.C. § 1621. So is a false declaration to the court. 18

17 U.S.C. § 1623. Perjury can also provide a separate basis for a criminal contempt charge,

18 but only when it results in an actual obstruction or attempt at obstruction of justice. In re

19 Michael, 326 U.S. 224, 227–28 (1945); Ex parte Hudgings, 249 U.S. 378, 383–84

20 (1919); see also § 401. The law also requires that even false testimony given in an

21 attempt to obstruct justice cannot provide the basis for a separate criminal contempt

22 charge unless “from the testimony itself it is apparent that there is a refusal to give

23 information which in the nature of things the witness should know.” Collins v. United

24 States, 269 F.2d 745, 750 (9th Cir. 1959).

25

This Court has found, under the civil standard of proof, that Sheriff Arpaio and

26 Chief Deputy Sheridan intentionally made a number of false statements under oath.

27 There is also probable cause to believe that many if not all of the statements were made

28 in an attempt to obstruct any inquiry into their further wrongdoing or negligence.

- 7 -

1 Nevertheless, as expressed above, “the test is not whether the testimony was perjurious or

2 false but whether without the aid of extrinsic evidence the testimony is ‘so plainly

3 inconsistent, so manifestly contradictory, and so conspicuously unbelievable as to make it

4 apparent from the face of the record itself that the witness has deliberately concealed the

5 truth and has given answers which are replies in form only and which, in substance, are

6 as useless as a complete refusal to answer.’” Collins, 269 F.2d at 750 (9th Cir. 1959)

7 (citation omitted).

8

Although their testimony is internally inconsistent in many respects, the falsity of

9 that testimony is best demonstrated by evidence extrinsic to their own testimony, rather

10 than “from the testimony itself.” Id. Thus, though the false testimony may provide a

11 potential basis for a criminal prosecution, it cannot be separately charged as

12 contemptuous.

13

4. Criminal Contempt Charges Are Warranted for Sheriff Arpaio

14

As has been more extensively set forth by the Court in its Findings of Fact, (Doc.

15 1677), Sheriff Arpaio and Chief Deputy Sheridan have a history of obfuscation and

16 subversion of this Court’s orders that is as old as this case and did not stop after they

17 themselves became the subjects of civil contempt.

18

Almost immediately after the Court entered its original October 2, 2013 injunctive

19 order, (Doc. 606), the Court had to amend and supplement the order and enter further

20 orders because: (1) the Sheriff refused to comply in good faith with the order’s

21 requirement that he engage in community outreach, (Doc. 670; see also Doc. 1677

22 ¶¶ 368, 368 n.13), and (2) the Sheriff and his command staff were mischaracterizing the

23 content of the order to MCSO deputies and to the general public, (Doc. 680; see also

24 Doc. 1677 ¶ 367). Both of these revisions increased the duties of the appointed Monitor

25 at the expense of county taxpayers.

26

Within one month of those revisions, the Defendants disclosed to the Court the

27 arrest, suicide, and subsequent discovery of misconduct of Deputy Ramon “Charley”

28 Armendariz who had been a significant witness at the trial of the underlying matter.

- 8 -

1 Among other things, the disclosure of Armendariz’s misconduct eventually resulted in

2 the determination that: (1) the Sheriff had not complied with his discovery obligations in

3 the underlying action, (see Doc. 1677 ¶¶ 213–17); (2) that MCSO supervisors had long

4 been aware of Armendariz’s problematic behavior and misconduct and had not

5 appropriately supervised Armendariz and many other deputies; (3) the MCSO was

6 routinely depriving members of the Plaintiff class of their property and retaining it

7 without justification; (4) the Sheriff had done nothing to implement this Court’s 2011

8 preliminary injunctive order; and (5) the Sheriff was not investigating the allegations of

9 misconduct in good faith—especially those that pertained to him or to members of his

10 command staff.

11

Sheriff Arpaio and Chief Deputy Sheridan intentionally manipulated the

12 investigations they initiated in response to the misconduct revealed by the Armendariz

13 discovery to engineer pre-determined results, (id. ¶¶ 609–47), to prevent effective

14 investigations, (id. ¶¶ 424–34), to cause investigations to be untimely, (id. ¶¶ 574–83),

15 and to fail to follow up on appropriate allegations, (id. ¶¶ 648–54). Moreover, the

16 investigations were conducted pursuant to policies that discriminated against the Plaintiff

17 class. (Id. ¶¶ 509–14.)

18

Although the Monitor pointed out many investigative flaws early on, they were

19 never corrected nor even recognized as flaws. (Id. ¶¶ 655–69.) In fact, it was not until

20 November 2014 that the MCSO finally informed the Court that the videotapes found in

21 Armendariz’s garage demonstrated that the MCSO had done nothing to implement this 22 Court’s December 23, 2011 preliminary injunction.2 Shortly after that discovery, Sheriff

23 Arpaio and Chief Deputy Sheridan, among others, became the subjects of civil contempt

24 proceedings. Thereafter, the Sheriff, Chief Deputy Sheridan, and members of their

25 command staff misstated facts to both the MCSO investigators and those of the Monitor

26 team. (See, e.g., id. ¶¶ 15, 15 n.4, 337, 517–19.) Disciplinary processes were further

27

28

2 The Court had been aware of some violations of its preliminary injunction in making its May 2013 Order. It did not know until November 2014, however, that the

Sheriff had taken no steps to implement that Order.

- 9 -

1 subverted by appointing a biased decision-maker. (Id. ¶¶ 439–55, 484–89.) Despite this

2 Court’s order that the Sheriff keep the Court updated on the initiation and completion of

3 the IA investigations, (Doc. 795 at 17), he did not timely or adequately do so. Further,

4 when Sheriff Arpaio and Chief Deputy Sheridan took the stand during the contempt

5 hearings in April, September, and October 2015, they both gave intentionally false

6 testimony under oath concerning the Montgomery investigation and at least several

7 MCSO internal affairs operations.

8

As is discussed above, in the period between their April 2015 and

9 September/October 2015 testimony, contrary to the Court’s orders to do so, Sheriff

10 Arpaio provided no direction to the MCSO in the preservation and production of the

11 Montgomery materials and neither he nor Chief Deputy Sheridan disclosed those

12 materials as ordered. Further, in July 2015, when an additional 1459 IDs were

13 discovered, which included many IDs belonging to members of the Plaintiff class, Chief

14 Deputy Sheridan concealed the IDs from the Monitor and ordered that Captain Bailey

15 suspend the relevant IA investigation into them in an attempt to evade this Court’s order

16 requiring disclosure of that IA and the Monitor’s complete access to that investigation.

17 Chief Deputy Sheridan then made misstatements of fact both to the media and to the

18 Monitor about his actions.

19

In the face of the above misconduct, Sheriff Arpaio’s proffered list of the steps he

20 has taken over the last three years to comply with this Court’s initial order falls flat as a

21 justification for not initiating a criminal contempt hearing. The Monitor reports that now,

22 nearly three years after the promulgation of that order, the Sheriff is only in compliance

23 with 63% of his Phase I obligations and 40% of his Phase II obligations. (Doc. 1759 at

24 180.) Further, the Monitor notes that “we continue to find supportive, well-intentioned

25 sworn and civilian personnel in administrative and operation units of MCSO. What is

26 lacking is the steadfast and unequivocal commitment to reform on the part of MCSO’s

27 leadership team—most notably the Sheriff and Chief Deputy.” (Id. at 181.)

28

The Sheriff promises a new willingness to implement this Court’s orders. (Doc.

- 10 -

1 1770.) Such assurances are not new, and they have proven hollow in the past. When the

2 Montgomery misconduct was disclosed, the Sheriff represented in response to orders of

3 this Court that he would provide his full cooperation to the Monitor. (Doc. 700 at Tr. 70–

4 73.) He has represented that he would conduct complete and full IA investigations, that

5 he would implement and had been fully implementing this Court’s order, and that he

6 would hold persons responsible for their misconduct no matter how high in the office the

7 investigations took him. (Id. at Tr. 97.) He also promised to personally direct the

8 preservation and production of the Montgomery documents. (Doc. 1027 at Tr. 650–60.)

9 He has done none of these things.

10

As a result of his previously undisclosed and additional misconduct, the Court has

11 recently entered supplementary remedial orders. The Sheriff’s defiance has been at the

12 expense of the Plaintiff class. The remedies are at the expense of the citizens of

13 Maricopa County. Little to no personal consequence results to the Sheriff. As a practical

14 matter, the County indemnifies its officeholders for their civil contempt and the county

15 treasury bears the brunt of the remedy for the Sheriff’s § 1983 violations. While one of

16 the civil remedies imposed by the Court creates an independent disciplinary process to

17 impose the MCSO’s own employee discipline policies in a fair and impartial manner, the

18 Sheriff is an elected official and not an employee of the Sheriff’s office. He is thus not

19 subject to MCSO disciplinary policy or this Court’s civil remedy.

20

This lack of personal consequence only encourages his continued non-compliance.

21

Sheriff Arpaio offers to put “‘skin in the game’ consistent with the suggestions

22 discussed in 2015.” (Doc. 1770 at 11.) As the Court observed in response to that 2015

23 offer, however, payments made by the Sheriff that are funded by the donations of others

24 do not provide the Sheriff with sufficient personal consequence to deter continued

25 misconduct. Further, since the time he made that offer, the Sherriff’s civil contempt has

26 been found to be intentional, and the Sheriff has continued to commit acts of obstruction.

27 To the extent the Sheriff’s offer could be considered an offer of settlement it should be

28 evaluated by a prosecuting authority.

- 11 -

1

Sheriff Arpaio may be in charge of the MCSO for the foreseeable future. In doing

2 so, he must follow the law. If this Court had the luxury of merely entering what orders

3 were necessary to cure a one-time obstruction, or if the Sheriff had evidenced a genuine

4 desire to comply with the orders of this Court, it would be a different matter. The Court

5 has exhausted all of its other methods to obtain compliance.

6

Therefore, in light of the seriousness of this Court’s orders and the extensive

7 evidence demonstrating the Sheriff’s intentional and continuing non-compliance, the

8 Court refers Sheriff Joseph M. Arpaio to another Judge of this Court to determine

9 whether he should be held in criminal contempt for: (1) the violation of this Court’s 10 preliminary injunction of December 23, 2011,3 (2) failing to disclose all documents that

11 related to the Montgomery investigation in violation of this Court’s specific order entered

12 orally on April 23, 2015, (Doc. 1027 at Tr. 625–60), and the Monitor’s follow-up ITRs

13 for this material in violation of this Court’s orders requiring compliance with the

14 Monitor’s requests, (Doc. 606 ¶ 145; Doc. 700 at Tr. 71–73; Doc. 795 at 20), and (3) his

15 intentional failure to comply with this Court’s order entered orally on April 23, 2015 that

16 he personally direct the preservation and production of the Montgomery records to the

17 Monitor, (Doc. 1027 at Tr. 625–60).

18 B. Chief Deputy Sheridan, Captain Bailey, and Michele Iafrate Intentionally

19 Violated Court Orders

20

Pursuant to numerous Court orders, the MCSO and all of its agents were subject to

21 certain unequivocal and affirmative obligations of candor, disclosure, and accessibility to

22 this Court, its appointed Monitor, and the parties, with respect to, among other things,

23 internal affairs investigations and documents. (See, e.g., Doc. 606 ¶¶ 145-47 (October 2,

24 2013); Doc. 700 at Tr. 71–77 (May 14, 2014), Doc. 795 at 16–21 (November 20, 2014);

25

26

3 The County and the Plaintiffs have extensively negotiated in good faith a system

27

to reimburse in part some of the victims of the Sheriff’s misconduct. But, it is extremely unlikely that all who were detained will benefit from this good faith effort. Nor did the

28

violation of the Court’s orders harm only those who were detained beyond 20 minutes. (See, e.g., Doc. 1677 ¶¶ 161–63.) Thus, the Sheriff’s non-compliance created many

victims who will go uncompensated.

- 12 -

1 Doc. 825 at 2 (December 9, 2014); and Doc. 881 at 2 (February 12, 2015).) These orders

2 were nevertheless intentionally violated by members of the MCSO’s command staff and

3 its agents.

4

1. Chief Deputy Gerard Sheridan

5

As this Court has already determined pursuant to a civil standard of proof, Chief

6 Deputy Sheridan has engaged in misconduct in violation of his obligations to this Court,

7 the Monitor, and the parties, including the following: (1) Chief Deputy Sheridan knew of

8 this Court’s December 2011 preliminary injunction and intentionally disobeyed it, (see

9 Doc. 1677 ¶¶ 1–10, 66–92); (2) Chief Deputy Sheridan did not produce the 50 hard

10 drives of material received from Montgomery in response to this Court’s order; (3) Chief

11 Deputy Sheridan, after the evidentiary hearing began, directed that the discovery of 1459

12 IDs and the investigation into them be concealed in part by “suspending” the

13 investigation and by failing to disclose them, (Id. ¶¶ 297–304); (4) Chief Deputy

14 Sheridan, after his suspension of the IA investigation into the 1459 IDs, falsely asserted

15 to the Monitor team that the investigation had always been open as far as he had been

16 concerned, (Doc. 1465 at Tr. 1373–74); (5) Chief Deputy Sheridan twice made false

17 statements to the Monitor about who ordered Chief Trombi to send out MCSO-wide

18 emails on May 14, 2014, (Doc. 1677 ¶¶ 226–33); (6) Chief Deputy Sheridan intentionally

19 made a number of false statements under oath; (7) Chief Deputy Sheridan manipulated

20 the MCSO’s own internal affairs investigations to subvert a fair investigative process;

21 and (8) Chief Deputy Sheridan directed the mishandling of grievances to avoid personal

22 responsibility for granting them. Some or all of these incidents could be tried as separate

23 acts of criminal contempt. However, the Court desires to place practical limits on the

24 charges against Chief Deputy Sheridan so as to avoid an expensive retrial of all of the

25 same issues for which the Court has recently entered civil remedies.

26

Chief Deputy Sheridan asserts that a referral for criminal contempt is not

27 necessary because the independent authority appointed by the Court to investigate and

28 mete out appropriate discipline under MCSO policy will likely discipline him for at least

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1 some of the above misconduct and possibly for other misconduct that would not qualify

2 as contemptuous. The Court acknowledges this possibility and further acknowledges that

3 the civil remedies entered in this case may provide some deterrence to any future

4 misconduct by Chief Deputy Sheridan—especially when accomplished in conjunction

5 with a referral to the Arizona Peace Officer Standards and Training Board (“POST”).

6

Nevertheless, Chief Deputy Sheridan is the MCSO’s highest ranking employee. A

7 number of his acts were attempts to conceal evidence of misconduct—either his own or

8 the MCSO’s—and to evade responsibility for such acts. Moreover, the concealments

9 violated direct and clear orders of this Court and indicate a desire by Sheridan to frustrate

10 a full accounting of the MCSO’s misconduct by those in charge—even if the Court

11 ultimately became aware of the concealments at issue. In light of the seriousness of the

12 charges, and the quality of the evidence that establishes them, the possibility of MCSO

13 discipline and a referral to POST simply do not suffice as sufficient remedies. Yet,

14 because there is some remedy that resulted from the evidentiary hearing that applies to

15 the Chief Deputy, and because the Court does not wish to oblige a new Court to retry all

16 of Chief Deputy Sheridan’s possible contemptuous conduct to determine whether

17 criminal contempt is appropriate, this Court will refer Chief Deputy Sheridan for only

18 two of the above acts. There is probable cause to believe that he is either the instigator or

19 one of the main actors in each of these instances, both of which arose after Chief

20 Sheridan was already noticed for civil contempt.

21

Accordingly, as explained below, the Court finds that there is probable cause to

22 conclude that Chief Deputy Sheridan was a main actor in intentionally withholding the 50

23 Montgomery hard drives from production to the Court. It further finds that there is

24 probable cause to conclude that Sheridan was the instigator and perpetrator of a plan to

25 conceal from this Court and the Monitor the 1459 IDs and the resulting IA investigation

26 that came to light during the pendency of the evidentiary hearing on contempt.

27

a. The Montgomery Materials

28

Chief Deputy Sheridan was in Court on April 23, 2015, and he heard this Court

- 14 -

1 order Sheriff Arpaio to personally direct the preservation and production of the

2 Montgomery materials. (See generally Doc. 700.) He admitted that he knew that this

3 Court had ordered the production of all of the Montgomery materials. (Doc. 1417 at Tr.

4 1595.) He testified that he assumed that Sheriff Arpaio intended to delegate to him the

5 production of the Montgomery materials. (Id. at Tr. 1589). He also testified that he

6 fulfilled the assumed assignment by directing Chief Knight to Detective Mackiewicz.

7 Sheridan testified that he told Chief Knight that Mackiewicz held all of the records 8 pertaining to the Montgomery investigation.4 (Id. at Tr. 1589, 1595.)

9

At the time he accepted that assumed delegation, however, Chief Deputy Sheridan

10 knew that the MCSO was in possession of the 50 hard drives from Montgomery. (See,

11 e.g., id at Tr. 1582–83 (Sheridan testified to knowing about the 50 hard drives as early as

12 November 14, 2014, when he received an email from Mackiewicz (Ex. 2531) confirming

13 that “the vast majority of the information that [Montgomery] gave [the MCSO] on those

14 50 hard drives was nothing but junk . . . .”).) He also knew at this point that revealing the

15 contents of the 50 hard drives would prove that Montgomery had defrauded the MCSO

16 and would demonstrate that the MCSO had taken and was using material it believed to be

17 stolen from the CIA. (Id.) The hard drives had been placed in the MCSO’s property

18 room. (Doc. 1677 ¶ 356; see also Doc. 1455 at Tr. 2160–65 (Lieutenant Seagraves

19 testified that at least as of May 2015, individuals in her “chain of command” knew that

20 the 50 hard drives had been categorized as “found property” under Detective

21 Mackiewicz’s name and placed in the MCSO’s property and evidence room).)

22

Despite his knowledge, Chief Deputy Sheridan did not inform Chief Knight of the

23 existence or location of the 50 hard drives in directing him to comply with this Court’s

24 order or the Monitor’s ITRs. Apparently Detective Mackiewicz didn’t either. As

25

26

4 As this Court has previously found, in addition to their employment, there are

27

outside business and personal relationships between Sheridan and Mackiewicz that have resulted in what appears to be other coordinated misconduct between them. (See, e.g.,

28

Doc. 1677 ¶¶ 766–825.) Sheriff Arpaio stated he has gratitude for Detective Mackiewicz. He also had an unusual and direct reporting relationship with Detective

Mackiewicz as it pertained to the Montgomery investigation. (Id. ¶ 370.)

- 15 -

1 mentioned above, months later, during the July 2015 site visit, the Monitor independently

2 discovered the existence of the hard drives in the MCSO’s property and evidence room.

3 (Doc. 1677 ¶ 356; Doc. 1455 at Tr. 2160–65.)

4

When the Court discovered the existence of the concealed hard drives together

5 with the concealed IDs discussed below, it ordered the United States Marshal to take

6 custody of them. (Doc. 1677 ¶ 324.) That evening in a media interview, Chief Deputy

7 Sheridan falsely stated that nobody had ever asked the MCSO for the materials that the

8 Court had ordered to be delivered to the Marshals. (Id. ¶ 325.) This failure to produce

9 the 50 Montgomery hard drives violated this Court’s April 23, 2015 directive requiring

10 such production. It further violated orders requiring the Sheriff and the MCSO to comply

11 with all document requests made by the Monitor as well as the directive that the Sheriff

12 and the MCSO cooperate with the Monitor and withhold no information from him. (Doc.

13 700 at Tr. 71–73.)

14

b. 1459 IDs and the Related IA Investigation

15

Since the establishment of the Monitorship, this Court has ordered the Sheriff and

16 the MCSO to provide the Monitor with all documents that the Monitor requested. (Doc.

17 606 ¶ 145.) Directives for complete cooperation and compliance with the Monitor’s

18 investigations have been repeated in this Court’s subsequent orders. (Doc. 795 at 20.)

19 Further, in the May 14, 2014 hearing concerning the Armendariz discoveries, this Court

20 personally ordered Sheriff Arpaio and Chief Deputy Sheridan to fully cooperate with the

21 Monitor team in their investigations resulting from those discoveries. They agreed to do

22 so. (Doc. 1677 ¶ 222; Doc. 700 at Tr. 71–73, 97.)

23

In response to these orders, the Sheriff began making two different reports to the

24 Monitor after May 14, 2014. First, he began reporting the collection of video and audio

25 recordings, and second, at the direction of the Monitor, he began noting and updating the

26 Monitor on any new IA cases that arose from the May 14 revelations.

27

This obligation was further memorialized in this Court’s order of November 20,

28 2014. (Doc. 795.) First, that order required the MCSO to make affirmative and detailed

- 16 -

1 disclosures to this Court and the Monitor when it opened an IA investigation relating to 2 this lawsuit.5 (Id. at 18–19.) Second, the order also required that “the Monitor must

3 necessarily have complete access to Defendants’ internal affairs investigations. This

4 includes familiarity with the manner in which MCSO pursues an investigation—be it

5 criminal or administrative in nature—the investigation’s initial and continuing scope in

6 light of the information the investigation uncovers, the performance of the investigations,

7 and the kind of discipline—if any—ultimately imposed at its conclusion.” (Id. at 17.) A

8 follow-up order repeated this requirement after Ms. Iafrate, attorney for the MCSO,

9 objected to it. (Doc. 825 at 1.) Third, the order required that MCSO fully cooperate with

10 the Monitor in his investigations. (Doc. 795 at 20.).

11

Although the MCSO’s investigations into the matters arising from the Armendariz

12 discoveries were flawed, they did minimally confirm that MCSO deputies took IDs and

13 other items of personal property from members of the Plaintiff class without a basis for

14 doing so. Such previously undisclosed seizures, their extent, and the adequacy of the

15 MCSO’s investigation into such misconduct were relevant to the harm inflicted on the

16 Plaintiff class and the requisite appropriate remedies, thus they became one of the

17 principal topics of the evidentiary hearing.

18

On February 12, 2015, this Court granted Plaintiffs’ request and entered an order

19 requiring the MCSO to produce “[c]opies of identification documents seized by MCSO

20 personnel from apparent members of the Plaintiff Class” by the end of February 2015.

21 (Doc. 881 at 2.)

22

In April 2015, the MCSO sent out a briefing board requiring its personnel to turn

23 in such IDs. (See, e.g., Doc. 1465 at Tr. 1243–46, 1375, Ex. 2065.) Between the time

24 that this Court had ordered such disclosure in February, and before July 2015, the MCSO

25 had informed the Monitor of the opening of five IA cases relating to the discovery of

26 additional caches of IDs within the MCSO.

27

28

5 The Court’s December 9, 2014 clarification order further made clear that the information had to be provided not only to the Court and to the Monitor, but also to the

Plaintiffs and the United States Attorney. (Doc. 825 at 2.)

- 17 -

1

In the middle of the evidentiary hearing, on July 7, 2015, Captain Bailey became

2 aware that an additional 1459 IDs had been turned into property and evidence for

3 destruction by Sergeant Knapp. (Doc. 1677 ¶¶ 295–97.) Bailey began an internal affairs

4 investigation into the IDs on that same day and assigned it IA #2015-511. (Id. ¶¶ 297–

5 98.)

6

On that same day, Bailey also reported the discovery to Chief Deputy Sheridan

7 who asked him to ascertain some facts about the IDs. (Doc. 1498 at Tr. 3861–62.)

8 Bailey quickly ascertained and told Sheridan that the IDs were gathered by Knapp from

9 the destruction bin in property and evidence between 2006 and 2010. (Doc. 1465 at Tr.

10 1347.)

11

When Chief Deputy Sheridan learned of the discovery of the 1459 IDs, he did not

12 disclose them to the Monitor or the parties even though he knew that the Monitor and the

13 parties would want to know of their existence. He testified that while he is not an

14 alarmist, even he was alarmed by the discovery of so many IDs. He believed the Monitor

15 team would “overreact and create a huge problem” if they were informed of the existence

16 of the IDs. (Doc. 1465 at Tr. 1363–64, 1367.) He also testified that he did not want to

17 replicate the investigations that the MCSO had undertaken with respect to the

18 Armendariz IDs. (Id.) He, therefore, ordered Captain Bailey to suspend the investigation

19 into the 1459 IDs. (Id. at 1347.) In doing so, and in not disclosing the opening or the

20 suspension of the investigation to the Monitor, he violated the terms of this Court’s

21 November 20 orders, and provides probable cause to believe that he knowingly and

22 intentionally did so. He knew these orders required cooperation, the provision of

23 information that IA investigations be affirmatively disclosed, that the Monitor be given

24 complete access to such investigations, and that any concern about the Monitor’s right of

25 access be decided by the Court. (Id. at Tr. 1378–81.)

26

In addition, when the 1459 IDs were discovered, Sheridan knew of this Court’s

27 February 2015 orders that the MCSO must produce IDs that belonged to apparent

28 members of the Plaintiff class. (Id. at Tr. 1347–48.) Both Bailey and Sheridan realized

- 18 -

1 that because the IDs were taken from the property room, they were likely seized during

2 MCSO operations. (Doc. 1677 ¶¶ 299–300, 340.) And within a few days of their

3 discovery, Sheridan knew that approximately 30% of the 1459 IDs had Hispanic

4 surnames. (Doc. 1465 at Tr. 1357–58.) By that time Sheridan had concern that

5 disclosure would be required. (Doc. 1677 ¶ 340; Doc. 1465 at Tr. 1353.) He thereafter

6 consulted with Ms. Iafrate to determine whether there was a way to avoid disclosing the

7 IDs to the Monitor.

8

The Monitor scheduled a week-long quarterly site visit two weeks later during the

9 week of July 20–24, 2015. On July 17, the Friday before the site visit, Ms. Iafrate held a

10 meeting with the PSB staff to rehearse answers to questions that they might receive from

11 the Monitor during the site visit. Chief Deputy Sheridan and Captain Bailey were at the

12 meeting.

13

At the meeting, Lieutenant Seagraves, who knew of the 1459 IDs, asked

14 Ms. Iafrate what they should do if the Monitor asked about whether any new IDs were

15 found. Ms. Iafrate instructed those present that the PSB should not disclose the existence

16 of the IDs to the Monitor team because she did not believe that the MCSO was required

17 to disclose the IDs pursuant to this Court’s orders and planned to do further research on

18 the matter. (Doc. 1455 at Tr. 2239–40; Doc. 1677 ¶ 310.) Chief Deputy Sheridan

19 testified that he had no recollection of such instruction. (Doc. 1465 at Tr. 1353.) Captain

20 Bailey likewise testified that such instruction did not occur in this general meeting. (Doc.

21 1498 at Tr. 3867.) Although, Captain Bailey’s subsequent briefing argues that it did

22 occur based on the testimony of Seagraves. (Doc. 1750 at 4).

23

Sheridan and Bailey both testified that, after the meeting, Ms. Iafrate had another

24 meeting with them at which she instructed them that it would be premature to disclose the 25 ID’s voluntarily during the Monitor’s site visit the following week.6 (Doc. 1465 at Tr.

26 1356; Doc. 1498 at Tr. 3867). Sheridan also testified that at this meeting Bailey asked

27

28

6 Bailey’s testimony to this effect is undercut by his later testimony that he never discussed any potential questions by the Monitor team with Ms. Iafrate prior to the

meeting on July 20th. (Doc. 1498 at Tr. 3868, 3871.)

- 19 -

1 Ms. Iafrate how he should answer if he was directly asked about the IDs by the Monitor.

2 Sheridan testified that Ms. Iafrate instructed Bailey that in such a case he was to go ahead

3 and tell the Monitor about them. (Doc. 1465 at Tr. 1356–57). Bailey contradicts

4 Sheridan’s testimony in this respect. (Doc. 1498 at Tr. 3868, 3871.) In fact, Bailey

5 testified that he never discussed with Ms. Iafrate any potential questions by the Monitor

6 team prior to the meeting on July 20. (Doc. 1498 at Tr. 3868, 3871.)

7

On the 20th, the following Monday, Ms. Iafrate and member of the PSB met with

8 members of the Monitor team. During the course of the meeting, Chief Kiyler of the 9 Monitor team asked whether any new IDs had been found.7 Captain Bailey untruthfully

10 answered no. Both Captain Bailey and Lieutenant Seagraves testified that he gave this

11 answer upon the instruction of Ms. Iafrate who was present in the meeting. (Doc. 1677

12 ¶¶ 314–18.)

13

When, two days later, the existence of the IDs was disclosed to the Monitor, Chief

14 Deputy Sheridan testified that Captain Bailey expressed his concern that his previous 15 answer to the Monitor regarding the IDs would appear untruthful.8 Chief Deputy

16 Sheridan testified however that he told Bailey that he was not concerned that it would

17 appear as if the MCSO had sought to conceal the identifications because Captain Bailey

18 was following the advice of Ms. Iafrate, and Ms. Iafrate had not gotten back to Chief

19 Deputy Sheridan yet on whether there was even any obligation at all to disclose the IDs.

20 (Doc. 1465 at Tr. 1359–60.)

21

When the Court discovered the existence of the concealed IDs and the concealed

22 hard drives, it ordered the United States Marshal to take custody of them. (Doc. 1677

23 ¶ 324.) That evening in a media interview, Chief Deputy Sheridan falsely stated that

24 nobody had ever asked the MCSO for the materials that the Court had ordered to be

25 delivered to the Marshals. (Id. ¶ 325.) Thereafter, Sheridan also falsely stated in an

26

27

7 Captain Bailey testified that the question was whether there were any other pending investigations regarding identifications. (Doc. 1498 at 3869.) As will be

28 explained below, regardless of the question, Bailey’s answer was untruthful.

8 Captain Bailey also denies this. (Doc. 1498 at Tr. 3875.)

- 20 -

1 interview to a member of the Monitor team that as far as he was concerned the

2 investigation into the 1459 IDs had always been open. In his subsequent courtroom

3 testimony, however, he acknowledged that he had ordered the suspension of the

4 investigation into the IDs; nevertheless, when confronted with his statement to the

5 Monitor that the investigation had always been open, he asserted that he only meant to

6 partially suspend the investigation into the IDs and Captain Bailey must have

7 misunderstood him. As this Court has previously found under a civil standard of proof,

8 this testimony is not credible. (Id. ¶¶ 337–39.)

9

Chief Deputy Sheridan asserts that he did not act willfully because his counsel—

10 Ms. Iafrate—had given him advice that it would be premature to disclose the existence of

11 the IDs to the Monitor until she got back to him. There are at least three problems with

12 this argument.

13

First, “[a]lthough a defendant’s good faith belief that he is complying with the

14 order of the court may prevent a finding of willfulness, good faith reliance on the advice

15 of counsel to disobey a court order will not.” United States v. Armstrong, 781 F.2d 700,

16 706 (9th Cir. 1986) (footnote omitted). In Armstrong, it was not contested that

17 Armstrong relied on the advice of his counsel that he did not have to testify before the

18 grand jury. Nevertheless, he was personally aware of the court’s order that he was

19 required to do so, and there was no evidence that he believed that his refusal to testify

20 complied with the court’s order. Id. at 707. In rejecting a good faith reliance defense for

21 criminal contempt in this circuit, the Ninth Circuit noted “[i]n litigation frequently the

22 client must assume the risk of his advisor’s errors.” Id. at 706 (quoting Steinert v. United

23 States, 571 F.2d 1105, 1108 (9th Cir. 1978)). It noted that to hold otherwise would make

24 it too easy for parties to avoid punishment for their disobedience of court orders with

25 which they were familiar by merely receiving the advice of their counsel that they not

26 comply. Id. The “critical inquiry is whether the appellants were aware that they were

27 disobeying a lawful court order[,]” regardless of the advice of counsel. Id. at 707. Chief

28 Deputy Sheridan and Captain Bailey’s counsel cite United States v. Snyder, 428 F.2d 520

- 21 -

1 (9th Cir. 1970), for the proposition that “a party may defend against criminal contempt on

2 the basis of good faith reliance upon the advice of counsel.” (Doc. 1745 at 23; see also

3 Doc. 1750 at 7, 9–10.) These are incorrect statements of the law when the parties were

4 aware, like the parties are here, of the court orders being violated. In making this

5 erroneous assertion, counsel not only fails to cite Armstrong, they also misstate the

6 holding of Snyder itself. Snyder states that the advice of counsel “is no defense” to a

7 contempt charge. Snyder, 428 F.2d at 522.

8

As Armstrong explains, the relevant question is whether Sheridan had a good faith

9 belief that he was complying with the order of this Court. Armstrong, 781 F.2d at 706.

10 Here, there is probable cause to believe that Chief Deputy Sheridan did not have such a

11 belief despite any advice he may have received from counsel. He admitted that when the

12 1459 IDs were discovered he was aware of this Court’s order that such IDs needed to be

13 disclosed. He knew that the IDs were taken from the destruction bin during the years that

14 the MCSO was conducting immigration enforcement operations. He also knew and

15 reported to Ms. Iafrate shortly thereafter that 30% of the IDs were of persons with

16 Hispanic surnames. (Doc. 1465 at Tr. 1357.) He knew that the MCSO had previously

17 disclosed to the Monitor that it had initiated other separate IA investigations into a

18 number of IDs found under similar circumstances. He was also aware that the IDs and

19 the MCSO’s failure to adequately investigate them were relevant topics in the evidentiary

20 hearing—this Court had questioned him on such IDs during the initial round of testimony

21 in April 2015. He also admitted that he thought there was a likelihood that he had to

22 disclose the IDs. (Doc. 1677 ¶ 340; Doc. 1465 at Tr. 1353.) Finally, Sheridan knew of

23 this Court’s orders requiring the MCSO to disclose IA investigations to the Monitor and

24 to grant the Monitor full access to such investigations; he also knew that the Court had

25 outlined a way for the MCSO to dispute the Monitor’s right to access investigations and

26 documents. Nevertheless, he did not disclose the IDs and he did not follow the Court’s

27 procedures for contesting the Monitor’s access to them.

28

Chief Deputy Sheridan’s testimony is rife with contradictions. He testified that he

- 22 -

1 always intended to disclose the 1459 IDs to the Monitor team, yet after suspending the

2 investigation into the IDs, he consulted with Ms. Iafrate on whether the MCSO had to

3 disclose the IDs at all. He testified that he only wanted to withhold knowledge of the IDs

4 from the Monitor team until he could get the full and straight story, (Doc. 1465 at Tr.

5 1349, 1363–64), yet he ordered Captain Bailey to suspend the investigation into the IDs

6 and acknowledged that an investigation would have been the way to get the whole story

7 before disclosing the IDs to the Monitors, (id. at Tr. 1349). He gave multiple incongruent

8 accounts of whether the investigation was open or suspended.

9

Under such circumstances, regardless of how Ms. Iafrate advised Sheridan, there

10 is probable cause to believe that Sheridan did not have a good faith belief that he was

11 complying with this Court’s orders in withholding the existence of the 1459 IDs or the

12 investigation into them from the Monitor. Armstrong, 781 F.2d at 706.

13

Second, in reaction to learning about the 1459 IDs and the IA investigation into

14 them, Chief Deputy Sheridan ordered Captain Bailey to suspend the IA investigation.

15 Although he admits that he was aware of this Court’s November 20, 2014 Order, (id. at

16 Tr. 1378–81), his suspension of the investigation further demonstrated his awareness of at

17 least this Court’s orders that: (1) the MCSO make affirmative and detailed disclosures

18 about any investigations relating to this lawsuit once the investigation began, and (2) that

19 the Monitor be given complete access to all MCSO internal affairs operations to assess

20 “the manner in which MCSO pursues an investigation[,] . . . the investigation’s initial and

21 continuing scope in light of the information the investigation uncovers, the performance

22 of the investigations, and the kind of discipline—if any—ultimately imposed at its

23 conclusion.” (Doc. 795 at 17.)

24

The suspension of the investigation—when its existence required affirmative

25 disclosure and complete access to the Monitor—provides probable cause to believe that

26 Sheridan’s noncompliance was intentional. He ordered the suspension before consulting

27 with Ms. Iafrate. Likewise, the fact that he changed his story multiple times as to

28 whether the investigation was suspended, always open, or partially suspended but

- 23 -

1 misunderstood by Captain Bailey, provides further probable cause of his intent to violate

2 court orders. Although this bears on Chief Deputy Sheridan’s credibility, as this Court

3 has previously discussed, Sheridan’s suspension of the investigation does not in any way

4 prevent his court-ordered obligation to report it and give the Monitor complete access to 5 it.9

6

Third, Ms. Iafrate, who did not otherwise testify at the evidentiary hearing, has

7 denied to the Court that she gave any instruction to anybody at the MCSO to not

8 voluntarily disclose the existence of the IDs to the Monitor. (See Doc. 1194 at Tr. 16

9 (“MS. IAFRATE: [W]e did not lie to the monitors or keep that from the monitors. . . .

10 THE COURT: Well, let me ask you, are you aware that any instruction was given to

11 MCSO that they were not to volunteer that information? MS IAFRATE: No, and any

12 further conversation is privileged.”), 29.)

13

There is probable cause to believe that Chief Deputy Sheridan intentionally

14 violated multiple orders of this Court in not disclosing the 1459 IDs to the Monitor, in

15 suspending the IA investigation into the 1459 IDs, in failing to report the investigation to

16 the Monitor and this Court, and in failing to give the Monitor complete access to IA

17 #2015-511. Accordingly, the Court refers Chief Deputy Sheridan to another Judge of this

18 Court to determine whether he should be held in criminal contempt for concealing the

19 1459 IDs, and the PSB’s investigation into those IDs, from the parties and the Monitor.

20

2. Captain Steve R. Bailey

21

Captain Bailey initiated an investigation into the 1459 IDs on July 7, 2015.

22 Within a few days thereafter, he suspended the investigation on the orders of Chief

23 Deputy Sheridan. He never voluntarily disclosed the existence of the 1459 IDs or the IA

24 investigation into them to the Monitor. Suspending the investigation did not change the

25 obligation to disclose it. The MCSO was required to disclose the investigation because it

26

27

9 By suspending the investigation, he neither closed it nor terminated it. He and

28

Bailey both testified that the investigation would have been re-opened and completed later. Although, even had he closed it, the November 20, 2014 order still required

complete disclosure of its opening, conclusions, and closure. (Doc. 1677 ¶ 336.)

- 24 -

1 was an investigation, (Doc. 1677 ¶ 344), it was undertaken, (id. ¶ 333), and it was still

2 pending and Bailey intended to complete it when the time was appropriate, (id. ¶ 335).

3 Bailey acknowledged in another context that just because investigators had suspended an

4 IA investigation, the investigation still existed and they could not fail to report its

5 existence to the PSB. (Id. ¶ 342 n.11.) Such attempts at obfuscation are precisely why

6 the Court had given the Monitor complete access to the investigations to determine,

7 among other things, “the manner in which MCSO pursues an investigation—be it

8 criminal or administrative in nature—the investigation’s initial and continuing scope in

9 light of the information the investigation uncovers, the performance of the investigations,

10 and the kind of discipline—if any—ultimately imposed at its conclusion.” (Doc. 795 at

11 17.)

12

Further, on July 20, 2015, Captain Bailey gave a knowing and false response to

13 the Monitor concerning the existence of the IDs or an investigation into them. There

14 were, as he well knew, 1459 IDs that had been found. There were orders that he knew

15 required him to identify and give the Monitor the documents the Monitor requested. (See

16 Doc 606 ¶ 145; Doc. 795 at 20.)

17

Captain Bailey knew the requirements of this Court’s orders when he misstated the

18 facts to the Monitor. (Id. ¶ 348; Doc. 1498 at Tr. 3872.) He understood that the MCSO

19 was to comply with the Monitor, (Doc. 1498 at Tr. 3873), he knew on July 20th that he

20 could not unilaterally withhold information from the Monitor, (id. at Tr. 3874), and he

21 knew that he had a duty of candor towards the Monitor, (id. at Tr. 3874–75).

22 Nevertheless, he gave the untruthful response. Thus, he cannot establish a good faith

23 defense against contempt even assuming that Ms. Iafrate advised him to make such

24 misstatements. Advice of counsel in these circumstances does not constitute a defense to

25 a criminal contempt charge. See, e.g., Armstrong, 781 F.2d at 706. Captain Bailey

26 asserts that it can. (Doc. 1750 at 7, 9–10.) While there is evidence to believe that Ms.

27 Iafrate gave him such counsel—his testimony to that effect is supported by Lieutenant

28 Seagraves—Ms. Iafrate denies it, and her statement is at least indirectly supported by

- 25 -

1 Chief Deputy Sheridan’s testimony that Iafrate advised Bailey to disclose the IDs if

2 directly asked about them. (Doc. 1465 at Tr. 1356–57).

3

As are all of the other potential contemnors here, Captain Bailey is entitled to a

4 full and fair hearing on this matter. To be sure, he was under the command of Chief

5 Deputy Sheridan. But his intentional misstatements to the Monitor were serious and

6 obstructive acts taken in his capacity as the Captain of the PSB when the MCSO was

7 under a civil rights remedies order that required disclosure. There is little doubt that he

8 made the untrue statements, and little doubt that he knew that it was wrong to do so when

9 he made the statements that he did.

10

If Chief Deputy Sheridan is to be believed, Captain Bailey asked Ms. Iafrate, in

11 their July 17 meeting, what he should do if he was asked a direct question about the IDs,

12 and received the response that he should disclose them. If Ms. Iafrate’s statements to the

13 Court are to be believed, she never directed Bailey to hide anything from the Monitor.

14 Further Chief Deputy Sheridan testified that Bailey visited him when the IDs were

15 disclosed and was concerned about the ramifications of his untruthful response to the

16 Monitor. Although Captain Bailey denies all of these assertions, his own positions and

17 testimony have been at least arguably inconsistent on important points. Thus the charges

18 are serious and the evidence of them considerable. They deserve to be the subject of a

19 criminal contempt hearing where Captain Bailey can be fully heard on the matter.

20 Accordingly, the Court refers Captain Bailey to another Judge of this Court to determine

21 whether he should be held in criminal contempt for his intentional misstatements to the

22 Monitor regarding the existence and investigation into the 1459 IDs.

23

3. Michelle M. Iafrate

24

When Ms. Iafrate assumed the representation of the Sheriff in this matter, the

25 MCSO was under a decree that required that it disclose information to the Monitor

26 concerning IA investigations that the MCSO undertook, and that the Monitor be given

27 complete access to such investigations. It was required to cooperate fully with the

28 Monitor in his investigations and otherwise, and provide him with all documents he

- 26 -

1 requested. Further, the Court had provided mechanisms for the Sheriff to challenge the

2 right of the Monitor to particular documents or investigations, but required that in doing

3 so the Sheriff identify those documents or investigations.

4

Chief Deputy Sheridan, (Doc. 1465 at Tr. 1355–56), Captain Bailey (Doc. 1498 at

5 Tr. 3868, 3932–34), and Lieutenant Seagraves, (Doc. 1455 at Tr. 2168–69), all testified

6 that Ms. Iafrate told them on July 17 that they should not voluntarily disclose the

7 existence of the 1459 IDs to the Monitor should they come up during the site visit.

8 Captain Bailey and Lieutenant Seagraves further testified that in their July 20, 2015

9 meeting with the Monitor, Ms. Iafrate instructed Captain Bailey to give an untruthful

10 answer to a Monitor’s question about the 1459 IDs. However, Captain Bailey and

11 Lieutenant Seagraves disagree about what the actual question was. Lieutenant Seagraves

12 testified that the question was something to the effect of whether new IDs had been 13 found.10 (Doc. 1455 at Tr. 2171–74.) Captain Bailey testified that the question was 14 whether there were any pending investigations concerning IDs.11 (Doc. 1498 at Tr.

15 3935–36.)

16

Ms. Iafrate was aware that in response to the above orders and the Monitor’s

17 instruction, (Doc. 606 ¶¶ 145, 147; Doc. 700 at Tr. 71–73; Doc 795 at 20), the Sheriff

18 was obligated to disclose all new IDs found at the MCSO. She personally made such

19 disclosures on behalf of the Sheriff beginning in December 2014. (See, e.g., Doc. 827.)

20 Between this Court’s February 2015 discovery order and July 2015, she apparently made

21 such disclosure to the Monitor at least five times.

22

For the reasons stated above, to the extent Ms. Iafrate advised the MCSO to not

23 disclose the 1459 IDs, she was in violation of this Court’s orders. Advising a client to

24 violate a Court’s orders qualifies as criminal contempt. Snyder, 428 F.2d at 523 (“Here,

25 the advice, if given at all was to disobey the court’s order. We have held in such a case

26

27

10 This is consistent with the description of the question made by the Monitor at the Court’s July 24 hearing. (See Doc. 1194 at Tr. 7–8.)

28

11 This is more consistent with the description of the question made by Ms. Iafrate

at the Court’s July 24 hearing. (See Doc. 1194 at Tr. 16–17.)

- 27 -

1 that the attorney is also in contempt.”) (citation omitted).

2

Further, according to this Court’s orders, the MCSO could only withhold

3 documents requested by the Monitor based on a claim that they were subject to the

4 attorney-client privilege. (Doc. 606 ¶ 146.) To make such a claim, however, the MCSO

5 was obliged to identify those documents to the parties and the Monitor and then

6 demonstrate why the documents were privileged. (Id.) There is no claim that the 1459

7 IDs are privileged. Instructing her clients to misstate the truth about the existence of the

8 IDs not only violated this Court’s orders that the Monitor receive all the documents

9 requested, but also violated the prescribed way in which the MCSO was to dispute the

10 Monitor’s right to access documents.

11

To the extent that she advised MCSO personnel not to voluntarily disclose

12 information to the Monitor, she also violated Court orders that required the PSB to

13 affirmatively disclose its investigations, (Doc. 795 at 18), and provide the Monitor with

14 full access to them, (id. at 17–18 (“[T]he Monitor must necessarily have complete access

15 to Defendant’s internal affairs investigations.”); Doc. 825 at 1 (same)).

16

Ms. Iafrate was aware of this Court’s requirement that IA investigations be

17 disclosed by content, subject, and number to the Court at their initiation. She had

18 complied with this requirement a number of times. (See, e.g., Docs. 814, 830, 848, 852,

19 874.) And she personally informed the Monitor of the opening of five new IA

20 investigations involving found IDs at MCSO between this Court’s February 2015 order

21 and July 2015. She was made aware by Captain Bailey that he had opened a new IA

22 investigation with respect to the 1459 IDs. (Doc. 1498 at Tr. 3868.) They were,

23 admittedly, discussing the newest of those investigations, aside from the 1459 IDs, in the

24 July 20, 2015 meeting. (See, e.g., Doc. 1194 at Tr. 16–17.)

25

She also violated the prescribed way in which the MCSO was to dispute the

26 Monitor’s right to oversee any PSB investigation. To appropriately contest the Monitor’s

27 right to have complete access to an IA investigation, the MCSO had to first identify the

28 targets and subject matter of the investigations, and then the MCSO had to demonstrate

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1 that the investigation bore no relation to this lawsuit. (Doc. 795 at 21; Doc. 825 at 1–2.)

2

These requirements were set forth in this Court’s November 20, 2014 order. Ms.

3 Iafrate was aware of this Order. When the Court invited objections to it, Ms. Iafrate

4 specifically objected to the provision that the Monitor be given full access to all IA

5 investigations. In response to Ms. Iafrate’s objection, the Court made clear that it would

6 continue to require that the MCSO give the Monitor complete access to all investigations

7 so that the Monitor could independently determine which ones applied to the members of

8 the Plaintiff class or their rights. Nevertheless, the Court modified the order to enhance

9 the Sheriff’s ability to object if the Monitor asserted the right to oversee internal affairs 10 matters that the Sheriff believed to be unrelated to this lawsuit.12 (Doc. 817 at Tr. 7–9.)

11 Ms. Iafrate indicated that she found this solution acceptable. (Id. at Tr. 9.) Her directions

12 to her clients not to disclose such investigations, however, were in violation of this order.

13

Further, Ms. Iafrate’s direction to speak intentional untruths to the Monitor were

14 contemptuous not only because she advised her client to violate this Court’s orders but

15 also because such untruthfulness concealed that violation. Such conduct not only

16 qualifies as contemptuous, see, e.g., Clark v. United States, 289 U.S. 1, 11–12 (1933)

17 (“Deceit by an attorney may be punished as a contempt if the deceit is an abuse of the

18 functions of [her] office . . . and that apart from its punishable quality if it had been the

19

20

12 In that December 9, 2015 clarification, the Court noted:

[T]he ‘Monitor must necessarily have complete access to Defendants’

21

internal affairs investigations.’ . . . Defendants are further authorized

22

to file objections with the Court if and when they dispute the

Monitor’s involvement in particular investigative processes as

23

bearing no relation to the Monitor’s evaluation of whether the

24

Professional Standards Bureau is operating in compliance with the

Supplemental Permanent Injunction or other Orders of this Court

25

(e.g., Docs. 606, 670), or as otherwise exceeding the power vested in

26

the Monitor by the Court or unrelated to Plaintiffs claims. In its brief, Defendants must identify the contested investigation by its assigned

27

administrative number, and explain the irrelevancy of the Monitor’s

28

inquiry to the issues and conclusions in the underlying lawsuit.

(Doc. 825 at 1–2.)

- 29 -

1 act of someone else.”), it further violates a number of the Rules of Professional

2 Responsibility to which Ms. Iafrate is bound. L.R.Civ.P. 83.2(2); A.R.S. Sup. Ct. Rules,

3 Rule 42, Rules of Prof. Conduct, E.R. 1.2 (“A lawyer shall not counsel a client to engage,

4 or assist a client in conduct that the lawyer knows is . . . fraudulent.”); E.R. 3.4(a) (“A

5 lawyer shall not . . . unlawfully obstruct another party’s access to evidence or unlawfully

6 . . . conceal a document or other material having potential evidentiary value. A lawyer

7 shall not counsel or assist another person to do such an act.”); E.R. 3.4(c) (“A lawyer

8 shall not . . . knowingly disobey an obligation under the rules of a tribunal except for an

9 open refusal based on an assertion that no valid obligation exists.”); E.R. 4.1 (“In the

10 course of representing a client a lawyer shall not knowingly make a false statement of

11 material fact or law to a third person[.]”); ER 8.4(c)–(d) (“It is professional misconduct

12 for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or

13 misrepresentation; (d) engage in conduct that is prejudicial to the administration of

14 justice[.]”).

15

In addition to the other orders that this Court had issued, there was no reasonable

16 basis for Ms. Iafrate not to provide the 1459 IDs in response to this Court’s February

17 2015 discovery order. (Doc. 881.) But, even if there were such a good faith basis, there

18 is no justification for her instruction to her clients to misrepresent facts to the Monitor in

19 doing so. Further, Ms. Iafrate’s instruction to her client to conceal the IDs and/or the

20 investigation, and to do so dishonestly, strengthens the probable cause to believe that she

21 intended to violate this Court’s orders and to conceal the IDs from the parties, the

22 Monitor, and this Court in response to the request made of her by Chief Deputy Sheridan

23 about whether there was a necessity to disclose the IDs.

24

Ms. Iafrate makes the point that, while still representing the Sheriff in the

25 evidentiary hearing, she was not called by any party to testify concerning this matter and

26 thus had not had an opportunity to be heard. She did of course represent to this Court, in

27 its July 24, 2015 hearing, that she was aware of the 1459 IDs but “we did not lie to

28 monitors or keep that from the monitors.” (Doc. 1194 at Tr. 16.) She further avowed

- 30 -

1 that she was not aware of any instruction given to the MCSO that they were not to

2 volunteer information about the 1459 IDs. (Id.) She further represented to this Court that

3 she was in the Monday meeting and that current pending ID investigations were

4 discussed but not the 1459 IDs. (Id. at Tr. 16–17.) She, of course, is entitled to be heard.

5 Based on the testimony reviewed above, however, there is probable cause to conclude

6 that Ms. Iafrate was not truthful with this Court or the Monitor. The allegations of

7 misconduct against her are serious and deserve an expeditious resolution.

8

Ms. Iafrate filed briefing suggesting that the appropriate remedy, if any, for her

9 violations of this Court’s orders was to refer her to the state bar for discipline. There is

10 probable cause to conclude not only that Ms. Iafrate intentionally advised her client to

11 disobey this Court’s orders, but that she advised her client to be untruthful in doing so.

12 There is also probable cause to believe that Ms. Iafrate fully understood this Court’s

13 orders and fully intended to assist her client in their violation. These are, if found to be

14 true, serious violations not only of Ms. Iafrate’s professional ethical obligations, but of

15 her obligations to this Court to not obstruct its orders designed to discover and remedy

16 harms done to the Plaintiff class. Accordingly, while a referral to the state bar may be

17 appropriate given the facts, it is a separate consideration.

18

The Court, therefore, refers Michele Iafrate to another Judge of this Court to

19 determine whether she should be held in criminal contempt for her actions in failing to

20 disclose the 1459 IDs and/or the investigation concerning them to the Monitor, and

21 directing her client to misstate facts in response to the Monitor’s questioning.

22

II. Conclusion and Assignment to Another Judge

23

Pursuant to Rule 42(a)(2) of the Federal Rules of Criminal Procedure, the Court

24 requests that the United States Attorney for District of Arizona, John M. Leonardo, or his

25 designee(s), prosecute this matter. If the United States Attorney declines the appointment

26 he should so inform the Judge to whom the criminal contempt matters arising from this

27 case are referred, so that an additional assignment to a prosecuting attorney may be made

28 if that Judge deems it appropriate. Fed. R. Crim. P. 42(a)(2).

- 31 -

1

The Court retains its jurisdiction over this civil case and the resulting continued

2 supervision of the Defendants and directs that only the criminal contempt proceedings

3 initiated by this Order be randomly assigned to another Judge within the District of

4 Arizona.

5

In light of this Court’s referral, the assigned Judge shall determine and state to the

6 Defendants the time and place of the trial, and allow the Defendants a reasonable time to

7 prepare a defense pursuant to Rule 42(a).

8

IT IS THEREFORE ORDERED that pursuant to Rule 42(a)(1) of the Federal

9 Rules of Criminal Procedure, the Court refers Sheriff Joseph M. Arpaio, Chief Deputy

10 Gerard Sheridan, Captain Steven R. Bailey, and Attorney Michelle M. Iafrate to another

11 Judge of this Court to determine whether they should be held in criminal contempt for the

12 matters detailed above.

13

IT IS FURTHER ORDERED directing the Clerk of Court to refer the criminal

14 contempt proceedings, by random lot, to another Judge in the District of Arizona.

15

IT IS FURTHER ORDERED directing the Clerk of Court to promptly notify the

16 United States Attorney for the District of Arizona regarding this Order.

17

Dated this 19th day of August, 2016.

18

19

Honorable G. Murray Snow

20

United States District Judge

21

22

23

24

25

26

27

28

- 32 -

 
 Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 1 of 14

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 United States of America,

No. CR-16-01012-001-PHX-SRB

10 11 v.

Plaintiff,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

12 Joseph M. Arpaio,

13

Defendant.

14

15

This case arose from a finding of civil contempt by Judge G. Murray Snow in the

16 Melendres v. Arpaio, 2:07-cv-02513-GMS case (“Melendres”). On August 19, 2016, 17 Judge Snow referred Defendant for an investigation of criminal contempt. (Doc. 1, Aug. 18 19, 2016 Order.) On October 25, 2016, the Court issued an Order to Show Cause

19 providing Defendant with notice of the charge against him and setting trial for December 20 6, 2016. (Doc. 36, Oct. 25, 2016 Order.) Following the grant of several trial continuances, 21 a five-day bench trial occurred, commencing on June 26, 2017 and concluding on July 6,

22 2017. (See Docs. 177, 179, 187, 190, and 199.) The Court took the matter under 23 advisement and now makes its findings of facts and conclusions of law. 24 I. FINDINGS OF FACT

25

The Court finds:

26

Defendant was the Sheriff of Maricopa County from 1993 through 2016. The

27 Maricopa County Sheriff’s Office (“MCSO”) once had 287(g) program authority to

28 enforce federal civil immigration law violations but that authority was revoked in

Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 2 of 14

1 October 2009. (Gov’t Ex. 36A.) The parties in Melendres moved for summary judgment

2 and on December 23, 2011, Judge Snow issued an order granting in part and denying in

3 part their motions for summary judgment. (Gov’t Ex. 1.) In that order, Judge Snow

4 enjoined the Melendres defendants “from detaining persons for further investigation

5 without reasonable suspicion that a crime has been or is being committed.” (Id. at 23-24,

6 25, 26.) In the “IT IS THEREFORE ORDERED” section, Judge Snow specifies that:

7

MCSO and all of its officers are hereby enjoined from detaining any

8

person based only on knowledge or reasonable belief, without more, that

the person is unlawfully present within the United States, because as a

9

matter of law such knowledge does not amount to reasonable belief that the

person either violated or conspired to violate the Arizona smuggling statute,

10

or any other state or federal law.

11

12 (Id. at 40.) That evening, Timothy Casey, MCSO’s attorney, called Chief Brian Sands

13 from MCSO to tell him that the order had been filed. (Trial Tr. Day 1-AM 71:15-72:22.)

14 After his phone call, Mr. Casey sent a follow-up email to Brian Sands, John MacIntyre,

15 Jerry Sheridan, and Joseph Sousa and carbon copied Eileen Henry and James Williams.

16 (Gov’t Ex. 6.) Mr. Casey’s email gave a “quick summary” of the order including a quote

17 from the order’s “IT IS THEREFORE ORDERED” section containing the injunction.

18 (Id.) Mr. Casey documented in an email to Mr. Williams that he also spoke to Defendant

19 and advised him of the injunction on December 23, 2011. (Trial Tr. Day 1-AM 73:17-

20 23.)

21

On December 26, 2011, Mr. Casey spoke to Defendant about the order and

22 whether to take an interlocutory appeal. (Trial Tr. Day 1-AM 88:5-12.) During that

23 conversation, Mr. Casey explained to Defendant “the effect of the rulings” giving the

24 advice that “[i]f you just believe or you know that [a person] is in the country unlawfully,

25 you cannot detain him based on that alone. You either are to have an arrest based on state

26 charges or you release. Those are the options.” (Trial Tr. Day 1-AM 88:13-23; 89:4-7.)

27 Mr. Casey also told Defendant that he could not turn people over to the federal

28 authorities, and Defendant responded that it would not be an issue because MCSO was

- 2 -

Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 3 of 14

1 not doing it anymore because “Obama” was not taking them at ICE. (Trial Tr. Day 1-AM

2 91:11-24.)

3

During a January 2012 executive staff meeting, Mr. MacIntyre read the injunction

4 twice to Defendant and others who regularly attended the Monday morning executive

5 staff meetings. (Gov’t Ex. 5 1878:19-25.) Mr. MacIntyre “wanted to make sure that

6 everyone knew what the order said.” (Gov’t Ex. 5 1944:9-10.) Mr. MacIntyre testified

7 that no one asked him a question when he finished reading. (Gov’t Ex. 5 1879:24-

8 1880:18.) He believed “that the judge’s preliminary injunction forbade the arrest,

9 detention, or delay or stoppage of individuals merely based on the belief or suspicion, or

10 reality, that they were here in this country illegally alone” and required a change in

11 MCSO’s policy of “stopping, detaining, or delaying individuals based on mere illegal

12 presence in this country alone.” (Gov’t Ex. 5 1877:10-13; 1944:9-25.) Mr. MacIntyre

13 provided internal legal advice to Defendant and others at MCSO as part of his work

14 responsibilities. (Gov’t Ex. 5 1868:4-9; 1870:5-8; Gov’t Ex. 3G 142:12-17; Gov’t Ex. 3I

15 404:7-12.) Defendant stated that Mr. MacIntyre had always been part of “the inner circle”

16 and knew him to tell the truth, and Mr. Casey called Mr. MacIntyre “a trusted member of

17 the executive staff . . . for the sheriff.” (Gov’t Ex. 3G 140:16-17; Gov’t Ex. 3I 403:16-20;

18 Gov’t Ex. 5 1869:10-11.)

19

In a March 1, 2012 Univision interview, Defendant answered “yes” when asked if

20 he was still detaining and arresting illegal immigrants. (Gov’t Ex. 37A.) He further stated

21 that he would continue to enforce the laws and “if they don’t like what I’m doing, get the

22 laws changed in Washington.” (Gov’t Ex. 37B.) According to a March 28, 2012 press

23 release following a load vehicle raid, “Arpaio remains adamant about the fact that his

24 office will continue to enforce both state and federal illegal immigration laws as long as

25 the laws are on the books.” (Gov’t Ex. 36D.) In an April 4, 2012 Fox News interview

26 Defendant stated, “[he] will never give in to control by the federal government.” (Gov’t

27 Ex. 37D.) On April 5, 2012, in an interview with CBS about his Department of Justice

28 investigation Defendant stated, “Why are they going after this Sheriff? Well we know

- 3 -

Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 4 of 14

1 why. Because they don’t like me enforcing illegal immigration law.” (Gov’t Ex. 37E.) On

2 April 13, 2012, Defendant did a television interview stating, “I have support across the

3 nation as evidenced by the big bucks I’m raising for my next campaign. They don’t give

4 you money unless they believe in you . . . I want everyone to know what I do.” (Gov’t

5 Ex. 37G.) When asked in an April 24, 2012 PBS Newshour interview what the impact to

6 his operations would be if the Supreme Court struck down S.B. 1070, Defendant replied

7 “[n]one. I’m still going to do what I’m doing. I’m still going to arrest illegal aliens

8 coming into this country.” (Gov’t Ex. 37H.) In a May 2012 Fox News interview,

9 Defendant stated, “I’m not going to give it up. I’m going to continue to enforce state laws

10 and federal laws.” (Gov’t Ex. 37C.)

11

The bench trial in Melendres occurred during the summer of 2012. During the

12 Melendres trial, Mr. Casey “heard testimony that made [him] concerned” from Sergeant

13 Palmer, Charley Armendariz, and Defendant. (Trial Tr. Day 1-PM 132:10-18.) Soon after

14 that testimony, Mr. Casey told Defendant that the MCSO could not detain people for

15 federal authorities in the absence of state charges. (Trial Tr. Day 1-PM 133:8-20.)

16 Defendant responded that he knew about the order but that he delegates the details to the

17 Human Smuggling Unit, and indicated that he understood that he could not detain. (Trial

18 Tr. Day 1-PM 135:15-22.)

19

Lieutenant Jakowinicz testified that sometime between July and December 2012,

20 he had a conversation with Defendant about transferring individuals to federal authorities.

21 (Trial Tr. Day 3-AM 582:22-583:8.) Lieutenant Jakowinicz stated that Defendant asked

22 him what he would do if Immigration and Customs Enforcement (“ICE”) refused to take

23 people they detained but did not have state charges for and that before he could respond,

24 Defendant told him “[y]ou take them to Border Patrol.” (Trial Tr. Day 3-AM 583:14-23.)

25 Sergeant Michael Trowbridge explained that when ICE would not accept people detained

26 without criminal charges from the MCSO, MCSO officers would have to drive the

27 detainees to the Border Patrol in Casa Grande. (Trial Tr. Day 3-PM 705:4-11.) The drive

28 from Phoenix to Casa Grande took an hour and 15 minutes to an hour and 30 minutes.

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 5 of 14

1 (Trial Tr. Day 3-PM 705:12-14.)

2

In a June 25, 2012 Fox News interview, Defendant stated, “We are going to try to

3 call ICE to take them off our hands, which they have been doing, great cooperation

4 locally, they have been taking these illegal aliens off our hands when we have no state

5 charge against them, but I predicted this will stop. . . they took away [my 287g

6 authorization] about a few years ago.” (Gov’t Ex. 37K.) In another interview that day

7 with KNVX and Univision, Defendant stated “we have been doing it anyway, nothing

8 has changed” when asked about how his practice will change following the Supreme

9 Court’s ruling on S.B. 1070. (Gov’t Ex. 37L; see also Gov’t Ex. 37N.) In a June 26, 2012

10 interview with Fox News, Defendant noted that the “worst part” is that the “feds” have a

11 new policy where they only want to pick up felons and that he would have to “work

12 around” the policy to not release the people the feds do not want onto the streets. (Gov’t

13 Ex. 37O.) In an August 31, 2012 Fox Latino interview Defendant stated, “I’m just

14 enforcing the law, I took an oath of office and I won’t back down and I will continue to

15 do what I’ve been doing.” (Gov’t Ex. 37R.)

16

In September 2012, the Ninth Circuit affirmed Judge Snow’s preliminary

17 injunction. Mr. Casey sent an email to Mr. MacIntyre, Mr. Sands, Mr. Sheridan, and

18 Defendant’s assistant Amy Lake, stating that the preliminary injunction had been

19 affirmed and that the order was in place, “nothing changes”. (Trial Tr. Day 1-PM 140:4-

20 17; Gov’t Ex. 24.) On October 9, 2012, MCSO issued a news release wherein Defendant

21 stated, “I continue to enforce the laws but keep running into road blocks . . . My back up

22 [sic] plan is still in place and will continue to take these illegal aliens not accepted by ICE

23 to the Border Patrol.” (Gov’t Ex. 36G.)

24

On October 11, 2012, Mr. Casey received a letter from Andre Segura, a Melendres

25 plaintiff’s attorney, alleging that the MCSO had been detaining and transporting

26 individuals in violation of the preliminary injunction. (Gov’t Ex. 25.) The letter specified

27 three occasions where the MCSO detained and transported an individual who did not

28 have state charges to Border Patrol because ICE would not take them. (Id.) The incidents

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 6 of 14

1 were disseminated by the MCSO to the public via press releases, which Mr. Segura

2 attached to the letter. (Id.) Mr. Casey forwarded the letter to various MCSO personnel

3 including Mr. Sheridan, Mr. MacIntyre, and Mr. Sands. (Id.) The Sheriff was not on that

4 email chain because he does not have an email address. (Gov’t Ex. 3F 2539:14-22 (noting

5 that Amy Lake receives emails for the Sheriff); Trial Tr. Day 1-PM 143:3-10.) Mr. Casey

6 had a conversation with Defendant and told Defendant that transferring people to the

7 Border Patrol when ICE would not take them (“the backup plan”) was likely a violation

8 of the preliminary injunction order. (Trial Tr. Day 1-PM 148:10-19.) In one of the press

9 releases dated September 21, 2012, Defendant is quoted saying, “I expected that it would

10 happen eventually, so I had a back up [sic] plan in place which was to take these illegal

11 immigrants not accepted by ICE to the Border Patrol.” (Id.; Gov’t Ex. 36E.) Mr. Casey

12 testified that although he believed that MCSO had violated the preliminary injunction

13 during the three incidents, he was assured by Defendant that it was a mistake and that it

14 would not happen again. (Trial Tr. Day 1-PM 154:12-20, 169:19-22; see also Ex. 3F

15 2542:13-21 (Defendant stating that he may have told Mr. Casey that he would release

16 illegal immigrants that he did not have a state-law basis to charge without taking them to

17 ICE or Border Patrol).) Mr. Casey responded to Segura’s letter on October 18, 2012

18 stating that there had been no violation of the preliminary injunction. (Gov’t Ex. 26.)

19

In a January 17, 2013 news release, Defendant stated “[u]ntil the laws are

20 changed, my deputies will continue to enforce state and federal immigration laws.”

21 (Gov’t Ex. 36I.) In March 2013, the MCSO released a statement documenting that seven

22 people had been turned over to ICE while four had been arrested on state charges. (Gov’t

23 Ex. 36J.) An April 2013 press release documented that seven people had been arrested

24 while two people were turned over to ICE. (Gov’t Ex. 36K.) In May 2013, four people

25 were turned over to ICE. (Gov’t Ex. 36L.)

26

On May 24, 2013, Judge Snow issued a permanent injunction enjoining the MCSO

27 from “[d]etaining, holding, or arresting Latino occupants of vehicles in Maricopa

28 Country based on a reasonable belief, without more, that such persons were in the

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 7 of 14

1 country without authorization” among other things. (Def. Ex. 100.) On May 28, 2013, the

2 MCSO released a Briefing Board stating, “By order of Sheriff Arpaio, effective

3 immediately, no MCSO personnel shall detain any person for turnover to ICE unless

4 probable cause to arrest or detain exists under Arizona Criminal Law.” (Gov’t Ex. 46.)

5

The MCSO’s Human Smuggling Unit’s shift summaries document that from

6 December 23, 2011 to December 30, 2011, 14 persons not charged with a criminal

7 offense were turned over to ICE. (Gov’t Ex. 18.) They further show that from January 4,

8 2012 to December 31, 2012, 97 persons not charged with a criminal offense were turned

9 over to ICE. (Gov’t Ex. 19 (CD).) They also show that from January 2, 2013 to May 22,

10 2013, 60 persons not charged with a criminal offense were turned over to ICE. (Gov’t Ex.

11 20.) Sergeant Trowbridge explained that persons with state charges were not turned over

12 to ICE because an ICE agent was in the jail, so all persons documented as turned over to

13 ICE on shift summaries did not have criminal charges. (Trial Tr. Day 3-PM 747:4-19.)

14 II. CONCLUSIONS OF LAW

15

“[C]riminal contempt requires a contemnor to know of an order and willfully

16 disobey it.” United States v. Baker, 641 F. 2d 1311, 1317 (9th Cir. 1981). “Willfulness

17 and awareness of the order must be shown beyond a reasonable doubt.” Id.

18

A. Clear and Definite Order

19

“[B]efore one may be punished for contempt for violating a court order, the terms

20 of such order should be clear and specific, and leave no doubt or uncertainty in the minds

21 of those to whom it is addressed.” United States v. Joyce, 498 F.2d 592, 596 (7th Cir.

22 1974). “The language of an injunction must be read in the light of the circumstances

23 surrounding its entry: the relief sought by the moving party, the evidence produced at the

24 hearing on the injunction, and the mischief that the injunction seeks to prevent.” United

25 States v. Christie Indus., Inc., 465 F.2d 1002, 1007 (3d Cir. 1972); see Haskell v. Kansas

26 Natural Gas Co., 224 U.S. 217, 223 (1912). “The mere fact that such an interpretation is

27 necessary does not render the injunction so vague and ambiguous that a party cannot

28 know what is expected of him.” United States v. Greyhound Corp., 508 F.2d 529, 537

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 8 of 14

1 (7th Cir. 1974).

2

Judge Snow enjoined Defendant and the MCSO from “detaining persons for

3 further investigation without reasonable suspicion that a crime has been or is being

4 committed.” (Gov’t Ex. 1 at 23-24, 25, 26.) Although the parties cited primarily to

5 paragraph five in the “IT IS THEREFORE ORDERED” section of the order as the

6 injunction during trial, a full reading of the December 23, 2011 Order makes clear that

7 the Sheriff did not have “inherent authority” to investigate civil immigration violations.

8 In his discussion of law enforcement officers’ obligation to comply with an individual’s

9 constitutional right to be free from unreasonable searches and seizures under the Fourth

10 Amendment, Judge Snow said “[l]ocal law enforcement officers may therefore not detain

11 vehicle passengers based upon probable cause, or even actual knowledge, without more,

12 that those passengers are not lawfully in the United States, since such knowledge does

13 not provide officers with reasonable suspicion that the passengers are violating any law

14 that local law enforcement can enforce.” (Gov’t Ex. 1 at 12-13.) He further said, “[l]ocal

15 law enforcement agencies, such as the MCSO, may not enforce civil immigration law.

16 Defendants are therefore enjoined from detaining individuals in order to investigate civil

17 violations of federal immigration law.” (Gov’t Ex. 1 at 39.)

18

Judge Snow found that “[a] policy of detaining people pursuant to laws that

19 MCSO has no authority to enforce, or detaining them without reasonable suspicion that

20 they are violating laws it can enforce . . . merits injunctive relief.” (Id. at 7, 38.) The order

21 states, “MCSO does not have reasonable suspicion that a person is violating or conspiring

22 to violate the state human smuggling law or any other state or federal criminal law

23 because it has knowledge, without more, that the person is in the country without legal

24 authorization.” (Id. at 38.) In the “IT IS THEREFORE ORDERED” section, Judge Snow

25 specifies that:

26

MCSO and all of its officers are hereby enjoined from detaining any

person based only on knowledge or reasonable belief, without more, that

27

the person is unlawfully present within the United States, because as a

matter of law such knowledge does not amount to reasonable belief that the

28

person either violated or conspired to violate the Arizona smuggling statute,

or any other state of federal law.

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 9 of 14

1 (Id. at 40 (emphasis in original).) The Court concludes that Judge Snow’s order was clear

2 and definite. This conclusion does not require looking beyond the plain words of the

3 order, but even considering the relief sought by the plaintiffs in Melendres, the conduct

4 Defendant and the MCSO had been accused of, and what Judge Snow was seeking to

5 prevent, there is no doubt that the order prohibited the MCSO from conducting detentions

6 in violation of plaintiffs’ constitutional rights. The Melendres plaintiffs complained that

7 MCSO violated their constitutional rights by detaining them without state charges solely

8 for violating civil immigration law and Judge Snow’s order expressly prohibited the

9 MCSO from continuing that conduct.

10

Defendant argues that he had authority pursuant to Arizona Senate Bill 1070 and

11 Section 287(g)(10) to detain persons in the country illegally in order to cooperate with

12 federal agencies for civil immigration violations. (Trial Tr. Day 5 1050:1-15.) Assuming

13 without deciding that that might have been true before December 23, 2011, Judge Snow’s

14 order was clear—Defendant and the MCSO were enjoined from continuing their practice

15 of detaining persons for whom there were no criminal charges. Judge Snow’s preliminary

16 injunction spelled out that detaining those persons past the time sufficient to conduct a

17 criminal investigation was a violation of their Fourth Amendment rights and that

18 Defendant had to cease the practice immediately.

19

B. Knowledge of Order

20

In order to find that a person knew of the order, personal service is not required so

21 long as the person has “knowledge of the order”. Baker, 641 F. 2d at 1317; United States

22 v. Rylander, 714 F.2d 996, 1003 (9th Cir. 1983) (“[A]ctual knowledge of the order is all

23 that is required; neither formal notice nor personal service is necessary to support a

24 conviction for criminal contempt.”). It is clear that Defendant had knowledge of the

25 Order. Mr. Casey testified that on December 23, 2011 he made a phone call to Defendant

26 informing him that Judge Snow had issued an order regarding the Melendres plaintiffs’

27 motion for summary judgment and that a preliminary injunction had been issued. (Trial

28 Tr. Day 1-PM 184:11-15.) Mr. Casey’s billing records show that on December 26, 2011

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 10 of 14

1 he had another conversation with Defendant about the order wherein they discussed

2 appealing the preliminary injunction. (Gov’t Ex. 34; Trial Tr. Day 1-AM 88:5-7, 89:1-8.)

3 During that meeting, Mr. Casey explained to Defendant “the effect of the rulings” giving

4 the advice that “[i]f you just believe or you know that [a person] is in the country

5 unlawfully, you cannot detain him based on that alone. You either are to have an arrest

6 based on state charges or you release. Those are the options.” (Trial Tr. Day 1-AM 88:

7 13-23; 89:4-7.) Mr. Casey told Defendant that he could not turn people over to the federal

8 authorities, and Defendant responded that it would not be an issue because MCSO was

9 not doing it anymore because “Obama” was not taking them at ICE. (Trial Tr. Day 1-AM

10 91:11-24.) The evidence also shows that Mr. MacIntyre, an MCSO employee, lawyer and

11 frequent legal advisor to Defendant, read a portion of the preliminary injunction aloud

12 twice to Defendant and others at an MCSO Executive Cabinet meeting in January 2012.

13 (Gov’t Ex. 5 1878:19-25, 1879:24-1880:12.)

14

On at least two other occasions between December 2011 and May 24, 2013, Mr.

15 Casey discussed the preliminary injunction with Defendant. During the Melendres trial,

16 Mr. Casey told Defendant that the MCSO could not hold people for federal authorities in

17 the absence of state charges after Defendant testified about the LEAR policy. (Trial Tr.

18 Day 1-PM 132:10-18; 133:8-18.) Defendant responded that he knew about the order but

19 that he delegates the details to the Human Smuggling Unit, and indicated that he

20 understood that he could not detain. (Trial Tr. Day 1-PM 135:15-22.) Mr. Casey testified

21 that after he received the Segura letter, he told Defendant that his backup plan of 22 transporting people to Border Patrol was “likely” a violation of the order.1 (Trial Tr. Day

23 1-PM 148:10-19.) Mr. Casey testified that Defendant told him it was a mistake and that

24 “it was not going to happen again.” (Trial Tr. Day 1-PM 154:7-24.) Defendant even

25 admitted that he knew of the order. (Gov’t Ex. 2—Ex. B at 7; Gov’t Ex. 3A—Rep.’s Tr.

26 of Proceedings Before Honorable G. Murray Snow (Evidentiary Hr’g Day 2) 477:5-14,

27

28

1 Defendant does not dispute that he knew about the order arguing instead that his subordinates were charged with implementing it. The Court will address that argument

below.

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 11 of 14

1 18-25, 478:1-4, 483:8:16.) The Court concludes that Defendant knew of Judge Snow’s

2 preliminary injunction order.

3

C. Willful Violation of Order

4

In a criminal contempt case involving a court order, such as the one before

5

us, on the other hand, the court should consider the entire background behind the order- including the conduct that the order was meant to enjoin

or secure, the interests that it was trying to protect, the manner in which it

6

was trying to protect them, and any past violations and warnings- in

7

determining whether the order is sufficiently specific and in determining whether the defendant knew or should have known that his conduct was

8

wrongful.

9 Greyhound Corp., 508 F.2d at 532. “Willfulness is defined ‘as a volitional act done by

10 one who knows or should reasonably be aware that his conduct is wrongful.’” Baker, 641

11 F.2d at 1317 (quoting Greyhound Corp., 508 F.2d at 531-32). “The very issuance of the

12 order puts the party on notice that his past acts have been wrongful. ‘No concept of basic

13 fairness is violated by requiring a person in this position to be more than normally careful

14 in his future conduct.’” Greyhound Corp., 508 F.2d at 532–33 (quoting United States v.

15 Custer Channel Wing Corp., 247 F. Supp. 481, 496 (D.Md.1965), aff’d, 376 F.2d 675

16 (4th Cir. 1967), cert. denied, 389 U.S. 850).

17

Defendant argues that he has not willfully violated the preliminary injunction

18 order because he delegated enforcement of the order to his subordinates. (Ex. 3A, 478:23-

19 479:2, 482:22-25; Ex. 3F 2527:5-10.) However, willful ignorance of a court order which

20 a person has knowledge of and a duty to fulfill does not excuse non-compliance

21 therewith. United States v. Hoffman, 13 F.2d 269, 277 (N.D. Ill. 1925), aff'd, 13 F.2d 278

22 (7th Cir. 1926), and aff'd sub nom. Westbrook v. United States, 13 F.2d 280 (7th Cir.

23 1926) (“It seems to be assumed by the sheriff that no one is chargeable with more

24 knowledge than he chooses to have; that he is permitted to close his eyes when he pleases

25 upon all sources of information, and then excuse his ignorance by saying that he does not

26 see anything. In criminal as well as civil affairs, every man is presumed to know

27 everything that he can learn upon inquiry, when he has facts in his possession which

28 suggest the inquiry.”). In Hoffman, the court concluded that “[w]hile there is no evidence

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 12 of 14

1 connecting the sheriff with the bribery and corruption in the jail, he is chargeable with the

2 disobedience of the court’s writ to the extent that he might have prevented it if he had

3 acted with diligence. He must be charged here with knowledge of that which it was his

4 duty to know. And, so charged, he is convicted of disobedience of the writ by the records

5 of his office.” Id.

6

Defendant stated on numerous occasions that he would continue to keep doing

7 what he had been doing. (See, e.g., Gov’t Ex. 36D, 36I, 37B, 37C, 37H); Hoffman, 13

8 F.2d at 277 (“He is chargeable with the disobedience of the court’s writ to the extent that

9 he might have prevented it if he had acted with diligence.”). Defendant stated that he

10 “will continue to enforce illegal immigration laws” just seven days after the issuance of

11 the preliminary injunction.” (Ex. 3A 497:1-9.) During a June 2012 interview Defendant

12 stated, “Nothing has changed . . . We’ve been doing it. And we’ll continue to enforce the

13 laws.” (Gov’t Ex. 3B 526:6-9; see also 530:6-8 (“we’re going to continue doing what

14 we’ve been doing the last four or five years.”).) In August 2012, Defendant stated that he

15 continued to enforce federal law, despite knowing that he no longer had 287(g) authority

16 to do so. (Ex. 3B 544:21-22; 545:16-20; Gov’t Ex. 3G 44:21-24.) He did not tell anyone

17 in his office to change anything about how they did their work. (Gov’t Ex. 3D 2021:22-

18 2022:1; 2202:21-2023:3.) In January 2013, Defendant’s stance had not changed, as

19 evidence by his statement: “Until the laws are changed, my deputies will continue to

20 enforce state and federal immigration laws.” (Ex. B 568:23-569:2.)

21

Even more, Mr. MacIntyre, who provided internal legal advice to Defendant,

22 understood “that the judge’s preliminary injunction forbade the arrest, detention, or delay

23 or stoppage of individuals merely based on the belief or suspicion, or reality, that they

24 were here in this country illegally alone.” (Gov’t Ex. 5 1868:4-9; 1870:5-8; 1877:10-13.)

25 During a January 2012 executive staff meeting, Mr. MacIntyre read the injunction twice

26 to Defendant and no one asked him a question. (Gov’t Ex. 5 1878:19-25, 1879:24-

27 1880:18.) Mr. Casey told Defendant “arrest or release,” and Defendant does not deny that

28 Mr. Casey told him that or that Mr. MacIntyre read from the preliminary injunction at the

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 13 of 14

1 meeting. (Trial Tr. Day 1-AM 112:7-20; Trial Tr. Day 1-PM 126:13-127:3; Ex. 3F

2 2540:5-21; Gov’t Ex. 3I 406:21-407:24, 408:11-409:10.) Defendant knew of Judge

3 Snow’s order and received advice from internal and external counsel on what that order

4 required. See Hoffman, 13 F.2d 269, 277 (“He must be charged here with knowledge of

5 that which it was his duty to know.”). He did not follow up with any of his subordinates

6 to see if the order was in fact being complied with. (Gov’t Ex. 3G 23:6-11, 51:13-17.)

7 Defendant admits that he did not make any effort to find out if his office’s application of

8 the human smuggling law needed to change after issuance of the order. (Gov’t Ex. 3G

9 38:18-39:1;) see Greyhound, 508 F.2d at 532 (noting that indifference to the order will

10 support a finding of willfulness).

11

Not only did Defendant abdicate responsibility, he announced to the world and to

12 his subordinates that he was going to continue business as usual no matter who said

13 otherwise. For example, ICE changed its policy to only accept felons who violated civil

14 immigration law, and in response Defendant declared that he created a backup plan. (Ex.

15 3B 557:6-9; Ex. 3G 63:17-21; Gov’t Ex. 36G.) The backup plan directed the Human

16 Smuggling Unit to take illegal immigrants for whom state charges were unavailable to

17 Border Patrol if ICE did not agree to take them. (Gov’t Ex. 36E.) In mid to late 2012,

18 Defendant gave Lieutenant Jackowinicz a direct order to take people ICE would not to

19 Border Patrol. (Trial Tr. Day 3-AM 583:14-584:7.) This meant, in effect, that MCSO

20 officers were required by Defendant to detain persons not suspected of any crime for the

21 additional hour and 15 minutes to hour and 30 minutes it took to deliver the detainees to

22 the nearest Border Patrol station, Casa Grande in Pinal County. (Trial Tr. Day 3-PM

23 705:4-11.) These detentions, in violation of the Fourth Amendment, were exactly what

24 the preliminary injunction intended to stop. (Gov’t Ex. 1 at 7-8, 17, 23-24, 38, 40.) When

25 confronted by Mr. Casey about the violations in October 2012, Defendant told him that it

26 was a mistake and that it would not happen again, but there is no evidence that Defendant

27 ever gave his subordinates a contrary instruction. (Trial Tr. Day 1-PM 154:7-24.)

28

The evidence shows a flagrant disregard for Judge Snow’s order. Credible

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Case 2:16-cr-01012-SRB Document 210 Filed 07/31/17 Page 14 of 14

1 testimony shows that Defendant knew of the order and what the order meant in regards to

2 the MCSO’s policy of detaining persons who did not have state charges for turnover to

3 ICE for civil immigration violations. Despite this knowledge, Defendant broadcast to the

4 world and to his subordinates that he would and they should continue “what he had

5 always been doing.” The Court concludes that there is no doubt that Defendant knew or

6 should have known that his conduct violated the preliminary injunction order.

7 Greyhound, 508 F.2d at 541. The Court finds Defendant’s violation of the order willful.

8 III. CONCLUSION

9

The evidence at trial proves beyond a reasonable doubt and the Court finds that

10 Judge Snow issued a clear and definite order enjoining Defendant from detaining persons

11 for further investigation without reasonable suspicion that a crime has been or is being

12 committed; that Defendant knew of the order; and that Defendant willfully violated the

13 order by failing to do anything to ensure his subordinates’ compliance and by directing

14 them to continue to detain persons for whom no criminal charges could be filed. Because

15 the Court finds that Defendant willfully violated an order of the court, it finds Defendant

16 guilty of criminal contempt.

17

IT IS ORDERED finding Defendant guilty of criminal contempt.

18

IT IS FURTHER ORDERED setting Sentencing for October 5, 2017 at 10:00

19 a.m.

20

IT IS FURTHER ORDERED directing the Probation Department to prepare a

21 presentence investigation report.

22

Dated this 31st day of July, 2017.

23

24

25

26

27

28

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 Case 2:16-cr-01012-SRB Document 220 Filed 08/28/17 Page 1 of 7

1

2

3

4

5
6 Dennis I. Wilenchik, #005350 John D. Wilenchik, #029353
7 admin@wb-law.com

8

9

10

11 Mark Goldman, #012156
Vincent R. Mayr, #013954 12 Jeff S. Surdakowski, #030988

13

17851 North 85th Street, Suite 175 Scottsdale, AZ 85255

14 Main: (480) 626-8483 Facsimile: (480) 502-7500

15 docket@gzlawoffice.com

Attorneys for Defendant Joseph M. Arpaio 16

UNITED STATES DISTRICT COURT 17

DISTRICT OF ARIZONA 18

19 United States of America,

Case No.: 2:16-cr-01012-SRB-1

20 21 v. 22 Joseph M. Arpaio, 23 24

Plaintiff, Defendant.

DEFENDANT’S MOTION FOR VACATUR AND DISMISSAL WITH
PREJUDICE
(Oral Argument Requested)
(Assigned to the Honorable Susan R. Bolton)

25

Pursuant to Fed.R.Crim.P. 48 inter alia, Defendant Joseph M. Arpaio (“Defendant”)

26 respectfully moves to vacate the verdict and all other orders in this matter, as well as the

Case 2:16-cr-01012-SRB Document 220 Filed 08/28/17 Page 2 of 7

1 Sentencing on October 5th, and to dismiss this matter with prejudice. This Motion is made on

2 the grounds that on August 25th, 2017, the President of the United States of America issued a

3 full and unconditional pardon of Defendant. A copy of the Executive Grant of Clemency is

4 submitted to the Court as Exhibit “A” hereto, and incorporated as if set forth herein. The

5 President’s pardon moots the case, and it warrants an automatic vacatur of all opinions,

6 judgments, and verdicts related to the criminal charge. This Motion is supported by the

7 following Memorandum of Points and Authorities, and a proposed form of Order is submitted

8 herewith.

9

Defendant respectfully requests that the Court rule on the instant Motion promptly, in

10 order to enable the Defendant to update the United States Supreme Court as to the “final” status

11 of this case before its scheduled conference on September 25th, 2017 (and/or to take action to

12 withdraw the Petition to that Court, as appropriate).

13

RESPECTFULLY SUBMITTED August 28, 2017.

14 WILENCHIK & BARTNESS, P.C.

GOLDMAN & ZWILLINGER PLLC

15 /s/ Dennis and Jack Wilenchik Dennis I. Wilenchik, Esq.
16 John D. Wilenchik, Esq. The Wilenchik & Bartness Building
17 2810 North Third Street Phoenix, Arizona 85004
18 admin@wb-law.com

/s/ Mark D. Goldman Mark D. Goldman, Esq. Vincent R. Mayr, Esq. Jeff S. Surdakowski, Esq. 17851 North 85th Street, Suite 175 Scottsdale, AZ 85255 docket@gzlawoffice.com

19

Attorneys for Defendant Joseph M. Arpaio

20

MEMORANDUM OF POINTS AND AUTHORITIES

21

“[T]he vacatur of all opinions, judgments, and verdicts related to a criminal charge

22 against the defendant is appropriate when the presidential pardon is granted during the

23 pendency of the appeals process, which has the effect of rendering moot all the ongoing

24 appeals; the efficacy of the verdict finding the defendant guilty of the charge is lost to the same

25 mootness.” 67A C.J.S. Pardon & Parole § 33; citing U.S. v. Schaffer, 240 F.3d 35 (D.C. Cir.

26 2001)(vacating guilty verdict where pardon was issued before conclusion of appeals). In

1

Case 2:16-cr-01012-SRB Document 220 Filed 08/28/17 Page 3 of 7
1 Schaffer, the defendant (Schaffer) was pardoned while his appeal of the conviction was still 2 pending. Id. Schaffer filed a motion to dismiss, which was unopposed; but “the prosecutor 3 advance[d] the odd suggestion that Schaffer’s conviction is established as a matter of law.” 4 Schaffer, 240 F.3d at 38. The D.C. Circuit Court disagreed and held that because “[f]inal 5 judgment never ha[d] been reached,” and “the appeals process was terminated prematurely,” 6 then “[f]inality was never reached on the legal question of Schaffer’s guilt.” Id. (emphasis 7 original). “When a case becomes moot on appeal…this court generally vacates the District 8 Court’s judgment, vacates any outstanding panel decisions, and remands to the District Court 9 with direction to dismiss.” Id. “Because the present mootness results not from any voluntary 10 acts of settlement or withdrawal by Schaffer, but from the unpredictable grace of a presidential 11 pardon, vacatur is here just and appropriate.” Id. The D.C. Circuit then vacated “all opinions, 12 judgment, and verdicts” of the district court (on the grounds that the defendant’s claim of 13 innocence “will never again be tried”), and it remanded the case to the district court, with 14 directions to dismiss the case as moot. Id. The Ninth Circuit also has a clearly “established 15 practice” of vacatur whenever mootness prevents appellate review. See Dilley v. Gunn, 64 F.3d 16 1365, 1369 (9th Cir. 1995)(Section “IV,” subsection “A” of the Opinion). The only exception 17 (which was also addressed in Schaffer) is when the defendant has caused the mootness that 18 results in dismissal by “his own voluntary act,” e.g. by entering into a plea agreement, or 19 voluntarily ceasing the conduct that forms the basis for litigation. See id. (finding that rule of 20 automatic vacatur is “inapplicable” if mootness results from the parties’ voluntary settlement of 21 the case, because in such event “the judgment is not unreviewable, but simply unreviewed by 22 the appellant’s own choice”)(internal bracketing omitted). But as the D.C. Circuit Court found 23 in Schaffer, supra, “the unpredictable grace of a presidential pardon” does not fall into such a 24 category of “voluntary act[s].” Schaffer, 240 F.3d at 38. This is strikingly true for the case at 25 bar in which the Defendant did not even ask the President for a pardon before it was granted. 26 . . .
2

Case 2:16-cr-01012-SRB Document 220 Filed 08/28/17 Page 4 of 7

1

Because the President issued a pardon before sentencing and judgment—and clearly,

2 before the conclusion of any appeals—the Court is obligated to vacate its verdict and all other

3 orders in this matter, and to dismiss the case with prejudice. Because Defendant will never have

4 the benefit or opportunity to seek a reversal of the court’s verdict through appeal (and a re-trial

5 by jury), it is only fair that the Court vacate its verdict and all other rulings in the case. Further,

6 as a practical matter, if the Court does not vacate its orders then it will have the certain effect of

7 causing Defendant to maintain his appeal to the United States Supreme Court for a trial by jury,

8 and to pursue a direct appeal, because of the collateral consequences of a standing conviction.

9 Vacating the verdict would therefore achieve judicial economy, and save taxpayer expense.

10

In Robson v. United States, 526 F.2d 1145 (1st Cir. 1975), the defendant received an

11 unconditional pardon from the President soon after his conviction; but when the defendant filed

12 a Motion to Vacate the sentence, the district court denied the Motion and the defendant

13 appealed. Id. at 1146, 1147, n.2. The First Circuit held that because the district court declined to

14 vacate the sentence, then the appeal was not moot, because “the fact that petitioner has been

15 pardoned does not relieve him from all the disabilities of a conviction. His conviction may be

16 considered at sentencing in any subsequent criminal proceeding,1 and may result in heavier

17 penalties,2 or may be introduced to impeach credibility.3 In light of these adverse collateral

18 consequences, the termination of petitioner’s custody does not moot an action to review the

19 validity of his criminal conviction.”4 Id. (internal citations omitted for readability, see

20 footnotes). Accordingly, the First Circuit proceeded to review the case, and it reversed the

21

22 1 Citing Carlesi v. New York, 233 U.S. 51, 34 S.Ct. 576, 58 L.Ed. 843 (1914).

23 2 Citing United States v. Morgan, 346 U.S. 502, 512-13, 74 S.Ct. 247, 98 L.Ed. 248 (1954).
24 3 Citing Richards v. United States, 89 U.S.App.D.C. 354, 192 F.2d 602 (1951), cert. denied, 342 U.S. 25 946, 72 S.Ct. 560, 96 L.Ed. 703, rehearing denied, 343 U.S. 921, 72 S.Ct. 676, 96 L.Ed. 1334 (1952). 26 4 Citing Carafas v. LaBallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); see also
Gosa v. Mayden, 413 U.S. 665, 670 n. 3, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973).

3

Case 2:16-cr-01012-SRB Document 220 Filed 08/28/17 Page 5 of 7

1 district court’s order and remanded. Id. See also People v. Chiappa, 53 Ill. App. 3d 639, 368

2 N.E.2d 925 (1977)(finding that governor’s pardon of police officer did not render case moot,

3 where trial court apparently did not vacate the conviction). Likewise, if the Court does not

4 vacate the Defendant’s conviction, then Defendant will certainly pursue his appeals to achieve

5 that, which would be—to put it bluntly—a waste of everyone’s time and money, and patently

6 contrary to the rule of automatic vacatur that applies in these situations. Further, the appellate

7 courts would reverse the conviction on the grounds that Defendant was clearly entitled to a trial

8 by jury under 18 U.S.C. § 402, ending the case in more needless effort and a reversal.

9

CONCLUSION

10

For the foregoing reasons, Defendant moves the Court to vacate its verdict and other

11 orders in this matter, including the order setting a hearing for sentencing, and to dismiss the

12 case with prejudice. A proposed form of Order is submitted herewith.

13

RESPECTFULLY SUBMITTED August 28, 2017.

14 WILENCHIK & BARTNESS, P.C.

GOLDMAN & ZWILLINGER PLLC

15 /s/ Dennis and Jack Wilenchik Dennis I. Wilenchik, Esq.
16 John D. Wilenchik, Esq. The Wilenchik & Bartness Building
17 2810 North Third Street Phoenix, Arizona 85004
18 admin@wb-law.com

/s/ Mark D. Goldman Mark D. Goldman, Esq. Vincent R. Mayr, Esq. Jeff S. Surdakowski, Esq. 17851 North 85th Street, Suite 175 Scottsdale, AZ 85255 docket@gzlawoffice.com

19

Attorneys for Defendant Joseph M. Arpaio

20

21

CERTIFICATE OF SERVICE

22

I hereby certify that on August 28, 2017, I electronically transmitted the foregoing

23 Notice to the Clerk of the Court through the CM/ECF system, which will send a Notice of

24 Electronic Filing to all CM/ECF registrants for this matter.

25

26 /s/Wendy L. Echols

4

Case 2:16-cr-01012-SRB Document 220 Filed 08/28/17 Page 6 of 7
EXHIBIT A

Case 2:16-cr-01012-SRB Document 220 Filed 08/28/17 Page 7 of 7

 
 Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 1 of 15

1 R. Bradley Miller (pro hac vice) GUTTMAN, BUSCHNER AND BROOKS PLLC
2 2000 P. Street, N.W., Suite 300 3 Washington, D.C. 20036
Office: (202) 800-3001 4 Fax: (202) 827-0041
5 bmiller@gbblegal.com

6 Terry Goddard, No. 004557 Spencer G. Scharff, No. 028946
7 GODDARD LAW OFFICE PLC

8 502 W. Roosevelt Street Phoenix, Arizona 85003
9 Office: (602) 258-5521

10

terry@goddardlawplc.com scharff@goddardlawplc.com

11 Counsel for Certain Members
12 of the Congress of the United States

13 IN THE UNITED STATES DISTRICT COURT

14

FOR THE DISTRICT OF ARIZONA

15 United States of America, 16
Plaintiffs, 17
18 v.

19 Joseph M. Arpaio

20

Defendant.

21

NO. CR-16-01012-001-PHX-SRB
[PROPOSED] MEMORANDUM OF AMICI CURIAE CERTAIN MEMBERS OF CONGRESS IN OPPOSITION TO DEFENDANT’S MOTION FOR VACATUR AND DISMISSAL WITH PREJUDICE

22

INTEREST OF THE AMICI CURIAE

23 The amici curiae are members of Congress. They are Representatives John
24 Conyers, Jr.; Jerrold Nadler; Zoe Lofgren; Sheila Jackson Lee; Steve Cohen; Henry C.
25

26 “Hank” Johnson, Jr.; Theodore Deutch; Karen Bass; Cedric L. Richmond; Luis V.

27 Gutierrez; David N. Cicilline; Ted Lieu; Pramila Jayapal; Jackie Speier; Raúl M. 28

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 2 of 15

1 Grijalva; Joseph Crowley; Linda Sanchez; Bennie G. Thompson; Keith Ellison; Adriano

2 Espaillat; Ro Khanna; Ruben Gallego; Norma J. Torres; Eleanor Holmes Norton; Jimmy
3 Gomez; Dwight Evans; Juan Vargas; Nydia M. Velazquez; Jim Costa; Colleen Hanabusa;
4 5 Frank Pallone, Jr.; Grace F. Napolitano; and Barbara Lee.

6

The amici have an interest in protecting the division of powers among the

7 executive, legislative, and judicial branches of government set forth in the Constitution.

8 The amici regard that division of government powers as essential to the preservation of
9 10 liberty, as did the framers.1

11

The amici oppose Defendant Joseph M. Arpaio’s Motion for Vacatur and

12 Dismissal with Prejudice. The presidential pardon upon which that motion is based is an

13 encroachment by the Executive on the independence of the Judiciary. The amici urge the
14
15 Court to defend jealously against that encroachment as the framers intended.

16

The power to impose sanctions for contempt of court is an inherent power that is

17 essential to the independence of the judiciary, just as the power to impose sanctions for
18 contempt of Congress is an inherent power that is essential to the independence of the
19 legislative branch, as the Supreme Court held in Anderson v. Dunn, 19 U.S. 204 (1821).
20
21 Even without contempt of court statutes, the Court said, “that Courts of justice are

22 universally acknowledged to be vested, by their very creation, with power to impose
23 silence, respect, and decorum in their presence, and submission to their lawful
24

25 1

Amici could offer as authority for that proposition any number of passages from

26 The Federalist Papers, court decisions, speeches and writings of American leaders,

learned treatises, and the like. This is a foundational principle of American democracy. 27 “Power must never be trusted without a check.” John Adams, in a letter to Thomas

28 Jefferson, Feb. 2, 1816.

2

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 3 of 15

1 mandates….” Id. at 227. And each chamber of Congress necessarily has the same

2 implied power “to guard itself from contempts, [rather than be exposed] to every
3 indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against
4 5 it.” Id. at 228.

6

A presidential pardon of contempt of court or of contempt of Congress is thus an

7 encroachment on the independence of those co-equal branches of government. The
8 exercise of the pardon power in the circumstances here was not to ameliorate an unduly
9 10 harsh criminal punishment or to correct a mistake in the enforcement of the criminal

11 law—the intended purpose of the power—but to deprive the judiciary of the means to

12 vindicate the authority of the courts. The effect of the pardon is to subject the judiciary’s
13 authority to enforce prohibitory injunctions, even prohibitory injunctions issued in private
14 15 litigation, to the approval of the executive.

16

The amici also have an interest in protecting the rights and remedies provided by

17 legislation. The Arpaio pardon defeats the private right of action under 42 U.S.C. § 1983
18 for prohibitory injunctive relief from the deprivation of the rights, privileges, and
19 immunities under color of State law.
20

21

ARGUMENT

22 I. 23 24 25

THE POWER TO PUNISH ACTS OF DISOBEDIENCE TO COURT ORDERS IS ESSENTIAL TO THE INDEPENDENCE OF THE JUDICIARY.
Sanctions for contempt can be imposed under civil or criminal procedures, and can

26 be remedies for private litigants or purely punitive. Sanctions for contempt, as an

27 28

3

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 4 of 15

1 inherent power of the courts, predate contempt statutes. The law of contempt has evolved

2 over the centuries, but it has always been clear that contempt powers are required

3

to vindicate the jurisdiction and authority of courts to enforce orders and to

4

punish acts of disobedience. For while it is sparingly to be used, yet the

5

power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the

6

performance of the duties imposed on them by law. Without it…[their]

judgments and decrees would be only advisory. 7

8

If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the

9

courts impotent, and what the Constitution now fittingly calls ‘the judicial

power of the United States’ would be a mere mockery.

10

11

This power has always been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary

12

exercise of its duties, and to enable it to enforce its judgments and orders

necessary to the due administration of law and the protection of the rights

13

of citizens.

14 Gompers v. Buck Stove & Range Co., 221 U.S. 418, 450 (1911) (citation omitted).

15 II.
16

THE PARDON POWER EXISTS TO ALLOW RELIEF AS A MATTER OF GRACE FROM UNDUE HARSHNESS OR EVIDENT MISTAKE IN THE

17

ADMINISTRATION OF THE CRIMINAL LAW, NOT TO SUBJECT THE JUDICIARY TO SUPERVISION BY THE EXECUTIVE.

18 The Supreme Court addressed the applicability of the pardon power to contempt of
19 court in very different circumstances in Ex Parte Grossman, 267 U.S. 87 (1925).2 There
20

21 the defendant sold liquor to be consumed on his business premises in violation of

22 Prohibition. In other words, the defendant ran a speakeasy. The trial court issued an
23 2 The greater weight of legal authority before the Grossman decision was that
24 neither contempt of court nor contempt of Congress is subject to the President’s pardon 25 power. See, e.g., The Laura, 114 U.S. 411, 413 (1885) (“It may be conceded that, except
in cases of impeachment and where fines are imposed by a co-ordinate department of 26 government for contempt of its authority, the President, under the general, unqualified
grant of power to pardon offences against the United States, may remit fines, penalties 27 and forfeitures of every description….”). The Court in Grossman described that 28 authority as obiter dictum or as views “stated merely in passing.” 267 U.S. at 118

4

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 5 of 15

1 order that the defendant stop. Less than two months later, the defendant was caught

2 selling liquor again. The trial court found the defendant guilty of contempt of court and 3
sentenced him to imprisonment for one year and to a $1000 fine. The President thought 4 5 that too harsh and reduced the sentence to the fine on the condition that the defendant pay
6 the fine.

7

The trial court denied the President’s power to pardon or commute contempt of

8 court and committed the defendant to imprisonment. The Attorney General appointed
9
10 special counsel to argue to uphold the imprisonment, but argued as amicus that the

11 pardon was valid.

12

The Supreme Court upheld the pardon. The Court distinguished civil and criminal

13 contempt:

14

15

[I]t is not the fact of punishment but rather its character and purpose that makes the difference between the two kinds of contempts. For civil

16

contempts, the punishment is remedial and for the benefit of the

complainant, and a pardon cannot stop it. For criminal contempts, the

17

sentence is punitive and in the public interest to vindicate the authority of

18

the courts and to deter other like derelictions.

19 Id. at 111.

20

Criminal contempts, the Court held, were “Offences against the United States”

21 subject to the President’s power to pardon. “These contempts are infractions of the law,

22
visited with punishment as such.” Id. at 116. The pardon power 23

24

exists to afford relief from undue harshness or evident mistake in the

operation or enforcement of the criminal law. The administration of justice

25

by the courts is not necessarily always wise or certainly considerate of

circumstances which may properly mitigate guilt …. It is a check entrusted

26

to the executive for special cases…in confidence that he will not abuse it.

27 Id. at 120–21.
28

5

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 6 of 15

1 III. AN ABSOLUTE, UNQUALIFIED PRESIDENTIAL POWER TO PARDON

WOULD BE AN IMPEDIMENT TO THE CONSTITUTIONAL DUTY OF

2

THE JUDICIARY TO DO JUSTICE AND WOULD CONFLICT WITH

3

THE FUNCTION OF THE COURTS.

4

Any reading of Grossman as holding that the executive’s power to pardon is

5 absolute and unreviewable, or that contempt of court is just another crime that gives rise 6
to no particular concern for the independence of the judiciary, is incompatible with later 7 8 decisions on claims of absolute, unreviewable executive branch power. The executive
9 branch is seldom bashful to assert such claims, which the courts properly regard
10 skeptically. 11
The more recent decision perhaps most pertinent to the issues presented by the 12 13 Arpaio pardon is Young v. U.S. ex rel. Vuitton et Fils, 481 U.S. 787 (1987). There the
14 defendant sold counterfeit Vuitton and Gucci leather goods. The defendants consented to
15 a permanent injunction in private litigation for trademark infringement. An undercover 16
investigation five years later caught defendants still selling counterfeit leather goods in 17 18 violation of the injunction. The court appointed private counsel to prosecute criminal
19 contempt of court charges and a jury returned a guilty verdict. The defendants received

20 sentences that ranged from six months to five years.
21 The defendants argued that criminal contempts “are essentially conventional
22 crimes, prosecution of which may be initiated only by the Executive Branch.” Only the
23
24 United States Attorney’s Office, the defendants argued, could bring a prosecution for

25 criminal contempt. The Court held that the “power to punish for contempts is inherent in
26 all courts…and may be regarded as settled law. It is essential to the administration of
27 justice.” Id. at 795 (block quotation and citation omitted). “The ability to punish
28

6

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 7 of 15

1 disobedience to judicial orders is regarded as essential to ensuring the Judiciary has a

2 means to vindicate its own authority without complete dependence on other Branches.”
3 Id. at 796. The power to appoint private attorneys to prosecute contempt of court
4 5 “satisfies the need for an independent means of self-protection.” Id.

6

The Court thus had ready means to vindicate the Court’s authority if the President

7 had ordered federal prosecutors to drop the contempt of court charge against the
8 Defendant, reportedly the President’s initial plan from which Attorney General Jeff
9 10 Sessions dissuaded him. But a full and unconditional presidential pardon also effectively

11 deprives the Court of “the independent means of self-protection,” and makes the Court

12 dependent on the Executive. The decision in Vuitton is entirely consistent with other
13 more recent decisions where claims of unlimited executive powers intrude on the powers
14 15 of the judiciary or of Congress.

16

In United States v. Nixon, 418 U.S. 683 (1974), the President argued that the

17 courts were without jurisdiction to consider “an intra-branch dispute” between the
18 President and the Special Prosecutor and issue subpoenas that the Special Prosecutor
19 sought and the President opposed. “Since the Executive Branch has exclusive authority
20

21 and absolute discretion to decide whether to prosecute a case, it is contended that a

22 President’s decision is final in determining what evidence is to be used in a given
23 criminal case.” Id. at 693 (citations omitted). The Court held that “the fact that both
24 parties are officers of the Executive Branch cannot be viewed as a barrier to
25
26 justiciability,” and “since the matter is one arising in the regular course of a federal

27 criminal prosecution, it is within the traditional scope of Art. III power.” Id. at 697. 28

7

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 8 of 15

1

The Court in Nixon also rejected the President’s claim of “an absolute, unqualified

2 Presidential privilege of immunity from judicial process under all circumstances.” Id. at 3
706. The Court said that “a confrontation with other values arises” from that claim. Id. 4 5 “The impediment that an absolute, unqualified privilege would place in the way of the
6 primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions

7 would plainly conflict with the function of the Courts under Art. III.” Id. at 707. 8
The court in Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 9 10 2008), rejected a similar claim that the President’s removal power was beyond question
11 by the other branches. The President argued that the House Judiciary Committee could
12 not investigate the President’s decision to fire nine U.S. Attorneys, allegedly because the 13
U.S. Attorneys brought criminal prosecutions that hurt Republicans and failed to bring 14 15 criminal prosecutions that would hurt Democrats, because “Congress had no authority to
16 legislate and thus no corresponding right to investigate.” Id. at 77. “[T]he Executive
17 characterizes the Committee’s investigation too narrowly,” the court said: “It is not 18
merely an investigation into the Executive’s use of his removal power but rather a 19
broader inquiry into whether improper partisan considerations have influenced 20
21 prosecutorial discretion.” Id.

22

As in Nixon, “a confrontation with other values arises” from the Arpaio pardon, a

23 confrontation that did not arise from the pardon in Grossman. First, the defendant’s
24 business establishment in Grossman was called a “speakeasy” for a reason: the defendant
25

26 tried to keep quiet his sale of liquor to avoid legal sanction. The defendant may not have

27 respected Prohibition, but he did respect the authority of the court. The defendant paid a 28

8

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 9 of 15

1 stiff fine to avoid a prison sentence. Defendant Arpaio, in contrast, flouted the Court’s

2 earlier injunction. He said in one television interview that he would “never give in to
3 control by the federal government.” He basked in the national attention to his defiance.
4 5 The Defendant remains entirely unrepentant still.

6

Second, and relatedly, the pardon here is an intentional usurpation of the Court’s

7 authority by the President. President Trump does not pretend that his pardon of the 8
Defendant is based upon the considerations of grace that usually justify the exercise of 9 10 the pardon power. The President said that the Defendant “was just doing his job” by his
11 defiance of the court’s injunction. In short, unlike the pardon in Grossman, the pardon
12 here is not based upon “circumstances which may properly mitigate guilt,” but is 13
intended to defeat the Court’s authority to punish disobedience to the Court’s orders— 14 15 “an independent means of self-protection”—and perhaps is even intended to endorse the
16 Defendant’s contention that he was a “sovereign sheriff” beyond the power of federal
17 courts. 18
Third, trial courts no longer wield the despotic powers in criminal contempt 19
proceedings that would justify the pardon as a necessary check against abuses by the 20
21 judiciary. The Court in Grossman agreed that “[t]he power of a court to protect itself and

22 its usefulness in punishing contemnors is of course necessary.” 267 U.S. at 122.
23 Contempt of court powers, however, were then “without many of the guaranties which
24 the bill of rights offers to protect the individual against unjust conviction,” most notably a
25
26 disinterested judge. Id. The Court asked: “Is it unreasonable to provide for the

27 28

9

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 10 of 15

1 possibility that the personal element may sometimes enter into a summary judgment

2 pronounced by a judge who thinks his authority is flouted or denied?” Id. 3
The procedure described by the Court in Grossman—a bench trial for criminal 4 5 contempt before the judge whose order the defendant defied—needed reform, and the
6 judiciary made that reform. See In re Murchison, 349 U.S. 133, 137 (1955) (“It would be

7 very strange if our system of law permitted a judge to act as a grand jury and then try the

8 very persons accused as a result of his investigations.”).

9

10

The Defendant openly defied an injunction issued by Judge G. Murray Snow in a

11 civil case, Melendres v. Arpaio, and the matter was properly referred to a disinterested

12 judge, Judge Susan R. Bolton, for trial of criminal contempt charges. This Court found

13 beyond reasonable doubt that “Judge Snow issued a clear and definite order,” and that the
14
15 Defendant knowingly and willfully violated that order.

16

Again, President Trump did not pretend that his full and unconditional pardon of

17 the Defendant was based upon any concern that this Court erred in that factual finding,
18 and any criticism by President Trump of the procedural fairness of the Court’s conduct of
19 the trial was perfunctory.3 The argument that the Defendant was unfairly denied a jury
20
21 trial is politically contrived and legally flimsy, as this Court well knows. Rather,

22

23 3

In interviews with sympathetic media outlets, of course, counsel for the Defendant

describes the trial as a modern version of the Star Chamber: the presiding judge is a 24 “rogue, liberal judge” and the guilty verdict is “a finding that was so baseless and lacking

25 in merit that the President of the United States had to step in and correct this injustice.” See Jerome R. Corsi, Federal Judge in Arpaio Case Prepares to Rule Trump Pardon

26 Unconstitutional, The New American, September 19, 2017 (available at

https://www.thenewamerican.com/usnews/constitution/item/26941-federal-judge-in27 arpaio-case-prepares-to-rule-trump-pardon-unconstitutional) (last visited September 26,

28 2017).

10

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 11 of 15

1 President Trump agreed with the Defendant that Judge Snow’s injunction was not worthy

2 of obedience. 3
If the Defendant questioned the validity of Judge Snow’s civil injunction, then he 4 5 was required to challenge the injunction through orderly judicial review, rather than
6 ignore the injunction. If that was required of Dr. Martin Luther King, then that should be

7 required of the Defendant as well. See Walker v. City of Birmingham, 388 U.S. 307
8 (1967). “[I]n the fair administration of justice no man can be judge of his own case….
9 10 [R]espect for judicial process is a small price to pay for the civilizing hand of law, which

11 alone can give abiding meaning to constitutional freedom.” Id. at 320–21.

12 IV. THE ARPAIO PARDON INTERFERES WITH THIS COURT’S

13

ENFORCEMENT OF THE RIGHTS OF PERSONS UNLAWFULLY

DETAINED BY THE MARICOPA COUNTY SHERIFF’S OFFICE.

14

Most important, the pardon here denies the plaintiff class in Melendres the 15

16 remedies allowed by statute for the deprivation of their constitutional rights. The

17 defendant in Grossman violated public morality as then expressed by Prohibition, but did

18 not affect the rights of any particular person. The injunction that the defendant violated
19 there was issued in a government enforcement action. The pardon there of criminal
20
21 contempt did not “interfere with the use of coercive measures to enforce a suitor’s right,”

22 which was beyond the President’s power. Grossman, 267 U.S. at 121.

23

Congress provided by statute that “any citizen of the United States or other

24
person” injured by the “deprivation of any rights, privileges, or immunities secured by 25

26 the Constitution and laws” may seek relief “in an action at law, suit in equity, or other

27 proper proceeding for redress.” 42 U.S.C. § 1983. Relief in equity can include 28

11

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 12 of 15

1 mandatory and prohibitory injunctions. Mandatory injunctions require conduct, and

2 prohibitory injunctions forbid conduct. Mandatory injunctions are enforceable through 3
civil contempt, which allows very effective relief that is beyond the President’s power to 4 5 pardon. The effectiveness of prohibitory injunctions largely depends upon the ultimate
6 threat of criminal contempt, however. In Vuitton, the defendant paid substantial

7 monetary damages for infringement of Vuitton’s and Gucci’s trademarks. But the sale of
8 bootleg leather goods as Vuitton or Gucci products was very profitable, and the defendant
9 10 could and did treat those monetary damages as a cost of business. Criminal contempt for

11 violation of the civil injunction was the only effective remedy for Vuitton and Gucci for

12 infringement of their trademarks.
13 The plaintiff class in Melendres sought and secured an injunction that forbid the
14 15 Defendant to detain persons on suspicion only of undocumented immigration status,

16 which Judge Snow held deprived the persons detained of rights secured by the

17 Constitution. Monetary damages from that deprivation are difficult to measure and
18 otherwise inadequate. The Arpaio pardon effectively denies those persons the statutory
19 remedies provided by Congress for the deprivation of rights secured by the Constitution.
20

21 V. 22

IMPEACHMENT CANNOT BE THE ONLY SAFEGUARD AGAINST THE VERY REAL THREAT OF ENCROACHMENT BY THE PRESIDENT ON THE INDEPENDENCE OF THE JUDICIARY.

23

The Court in Grossman regarded the possibility of “successive pardons of

24
constantly recurring contempts in particular litigation” that “might deprive a court of 25

26 power to enforce its orders” as “so improbable as to furnish but little basis for argument.”

27 267 U.S. at 121. “Exceptional cases like this,” the Court said, “if to be imagined at all, 28

12

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 13 of 15

1 would suggest a resort to impeachment rather than to a narrow and strained construction

2 of the general powers of the President.” Id. 3
Successive pardons for those who violate the law with the President’s blessing is 4 5 no longer hard to imagine at all. The remedy suggested by the Court in Grossman—
6 impeachment—cannot be the only remedy for any encroachment by the Executive on the

7 independence of the other co-equal branches.

8 VI. THE APPOINTMENT OF PRIVATE COUNSEL WOULD SHARPEN THE

9

PRESENTATION OF ISSUES AND HELP ILLUMINATE THE

10

CONSTITUTIONAL QUESTIONS HERE.

11

The amici Members of Congress did not join the motion to appoint private

12 counsel, but strongly urge the Court to grant the motion. The circumstances here are

13 exactly the circumstances anticipated in Vuitton. The circumstances here are also very 14
similar to the circumstances in United States v. Windsor, 133 S. Ct. 2675 (2013). There 15
16 the President instructed the Department of Justice not to defend the constitutionality of

17 the Defense of Marriage Act, but urged the Court to “provid[e] Congress a full and fair

18 opportunity to participate in the litigation of these cases.” Id. at 2684. The Court said
19 that the “Executive’s agreement with Windsor’s legal argument raises the risk that
20
21 instead of a real, earnest and vital controversy, the Court faces a friendly, non-adversary

22 proceeding.” Id. at 2687. The Court allowed the participation by Congress to assure

23 “that concrete adverseness which sharpens the presentation of issues upon which the
24 Court largely depends for illumination of difficult constitutional questions.” Id. (citations
25
26 and quotation marks omitted).

27 28

13

Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 14 of 15

1

The appointment of private counsel, as well as consideration of arguments by

2 amici, would assure the Court the concrete adverseness that will help illuminate the

3 difficult—and important—constitutional questions presented by the pardon at issue here.
4

5

CONCLUSION

6

For the foregoing reasons, the amici Members of Congress urge the Court to hold

7 the President’s pardon of Defendant Joseph M. Arpaio to be an invalid encroachment on
8 the authority of the Judiciary, deny the pending motion to vacate the conviction of the
9 10 Defendant for criminal contempt, and proceed to sentencing.

11

12

Dated September 27, 2017.

By: s/ R. Bradley Miller (with permission)

13

14 R. Bradley Miller

15

GUTTMAN, BUSCHNER AND BROOKS PLLC

16

Terry Goddard

17

Spencer G. Scharff

GODDARD LAW OFFICE PLC 18

Counsel for Certain Members

19

of the Congress of the United States

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Case 2:16-cr-01012-SRB Document 246 Filed 10/05/17 Page 15 of 15

1

CERTIFICATE OF SERVICE

2

I hereby certify that on September 27, 2017, I electronically transmitted the above

3 document to the Clerk’s office using the CM/ECF System for filing and transmittal of a

4 Notice of Electronic Filing to all CM/ECF registrants.

5

6 s/ Spencer G. Scharff________ 7

8

9

10

11

12

13

14

15

16

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15

 
 Case 2:16-cr-01012-SRB Document 251 Filed 10/19/17 Page 1 of 4

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 United States of America,

No. CR-16-01012-001-PHX-SRB

10

Plaintiff,

ORDER

11 v.

12 Joseph M. Arpaio,

13

Defendant.

14

15

On October 4, 2017, the Court dismissed this matter with prejudice while

16 reserving on Defendant Joseph M. Arpaio (“Defendant”)’s additional request for vacatur 17 of all orders, which was made pursuant to Defendant’s Motion for Vacatur and Dismissal 18 with Prejudice (“Mot.”) (Doc. 220). The Court now considers that request.

19 I. BACKGROUND

20

This case started with a civil contempt finding by Judge G. Murray Snow in the

21 matter of Melendres v. Arpaio, 2:07-cv-02513-GMS. Judge Snow referred Defendant for

22 criminal contempt on August 19, 2016. (Doc. 1, Aug. 19, 2016 Order.) The Government 23 agreed to prosecute Defendant, and the Court issued an Order to Show Cause (Doc. 36) 24 on October 2, notifying Defendant of the charges against him and setting the matter for

25 trial. The Court conducted a five-day bench trial, commencing on June 26, 2017, and 26 concluding on July 6. (See Docs. 177, 179, 187, 190, and 199.) On July 31, the Court 27 found Defendant guilty of criminal contempt and scheduled sentencing for October 5. 28 (Doc. 210, July 31, 2017 Order.)

Case 2:16-cr-01012-SRB Document 251 Filed 10/19/17 Page 2 of 4

1

On August 25, the President granted Defendant a full and unconditional pardon for

2 his “conviction” in this matter and for “any other offenses . . . that might arise, or be

3 charged” with respect to the Melendres case. (Doc. 221, Executive Grant of Clemency.)

4 Defendant accepted the pardon and subsequently moved to vacate all orders and dismiss

5 his case with prejudice. (Mot. at 1-4.) During the motion’s pendency, several third parties

6 moved to file briefs as amici curiae. (See Docs. 223, 227, 228, 229, 231, 233, and 238.)

7 The Court heard oral argument on October 4. (See Doc. 243, Minute Entry.) At the

8 hearing, the Court granted all motions to file briefs as amici curiae, found the pardon to

9 be valid, and dismissed the criminal contempt action against Defendant with prejudice.

10 (Id.) The Court then took under advisement whether to issue any further orders. (Id.)

11 II. LEGAL STANDARD AND ANALYSIS

12

Article II recognizes the power of the President to “grant Reprieves and Pardons

13 for offenses against the United States, except in Cases of Impeachment.” U.S. Const.,

14 Art. II, § 2, cl. 1. Criminal contempt is included among those pardonable offenses. Ex

15 Parte Grossman, 267 U.S. 87, 121-22 (1925). A presidential pardon must be accepted to

16 be effective. Burdick v. United States, 236 U.S. 79, 94 (1915). Once accepted, a full and

17 absolute pardon “releases the wrongdoer from punishment and restores the offender's

18 civil rights without qualification.” Absolute Pardon, Black’s Law Dictionary (10th ed.

19 2014); accord United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833) (“A pardon is an

20 act of grace, proceeding from the power intrusted with the execution of the laws, which

21 exempts the individual, on whom it is bestowed, from the punishment the law inflicts for

22 a crime he has committed.”). It does not erase a judgment of conviction, or its underlying

23 legal and factual findings. United States v. Crowell, 374 F.3d 790, 794 (9th Cir. 2004);

24 see also In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994) (noting that “a pardon does not 25 blot out guilt or expunge a judgment of conviction”).1 Indeed, a pardon “carries an

26

27

1 The United States Supreme Court originally signaled in dicta that a presidential pardon may have an expunging effect. See Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380-

28

81 (1866) (“A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out

of existence the guilt, so that in the eye of the law the offender is as innocent as if he had

- 2 -

Case 2:16-cr-01012-SRB Document 251 Filed 10/19/17 Page 3 of 4

1 imputation of guilt; acceptance a confession of it.” Burdick, 236 U.S. at 94.

2

Defendant accepted the pardon before a judgment of conviction was entered.

3 Defendant insists that “it is only fair that the Court vacate its verdict and all other rulings

4 in this case.” (Mot. at 3.) Defendant relies on United States v. Schaffer, wherein an en

5 banc D.C. Circuit vacated “all opinions, judgments, and verdicts” when a presidential

6 pardon rendered the case moot on appeal. See 240 F.3d 35, 38 (D.C. Cir. 2001) (en banc)

7 (per curiam). But Schaffer addressed a situation much different from the present one. The

8 legal question of Schaffer’s guilt was never reached. Id. at 38. This was due, not only to

9 the pendency of an appeal when the pardon was issued, but also to the unique procedural

10 posture of the case at that time. See id. Following Schaffer’s conviction, the district court

11 ordered a new trial, from which the prosecutor appealed. Id. The appellate court reversed

12 and remanded for sentencing; however, after Schaffer was sentenced, his petition for en

13 banc review was granted and the sentencing order recalled. Id. “It was at that uncertain

14 juncture that then President Clinton pardoned Schaffer, thus rendering the case moot.” Id.

15

The issue on appeal in Schaffer was the district court’s grant of a new trial, which

16 had effectively left Schaffer “in the same situation as if no trial had ever taken place.” See

17 United States v. Ayres, 76 U.S. (9 Wall.) 608, 610 (1869); United States v. Recio, 371

18 F.3d 1093, 1105 n.11 (9th Cir. 2004). As far as the law was concerned, no findings

19 concerning Schaffer’s guilt or innocence had been made at the time he accepted the

20 pardon. Thus, the D.C. Circuit’s seemingly broad order of vacatur in Schaffer actually

21 asked very little of the district court, which was already poised to try Schaffer anew when

22 the pardon issued. See 240 F.3d at 38 (“The matter will be remanded to the District Court

23 with directions to dismiss the case as moot.”). The same cannot be said here. No appeal

24

25

26 never committed the offence.”). The Court later rejected this view. See Burdick v. United

27

States, 236 U.S. 79, 94 (1915) (“[A pardon] carries an imputation of guilt; acceptance a confession of it.”). Other courts have followed suit. See, e.g., In re North, 62 F.3d 1434,

28

1436-37 (D.C. Cir. 1994) (finding Garland dicta not controlling); United States v. Noonan, 906 F.2d 952, 958-59 (3d Cir. 1990) (same); Bjerkan v. United States, 529 F.2d

125, 128 n.2 (7th Cir. 1975) (same).

- 3 -

Case 2:16-cr-01012-SRB Document 251 Filed 10/19/17 Page 4 of 4

1 was pending.2 No new trial was ordered. And unlike Schaffer, who elected to accept a

2 pardon before the legal question of his guilt could be retried, Defendant accepted the

3 pardon after that question was resolved, but before a judgment of conviction was entered.

4 Therefore, the only matter mooted by the pardon was Defendant’s sentencing and entry

5 of judgment, the hearing for which was duly vacated. (Doc. 222, Aug. 29, 2017 Order.) 6 With nothing left to vacate, dismissal with prejudice was all that remained to be ordered.3

7 Having already done so, the Court declines to order any further relief.

8 III. CONCLUSION

9

“The power to pardon is an executive prerogative of mercy, not of judicial record-

10 keeping.” United States v. Noonan, 906 F.2d 952, 955 (3d Cir. 1990). To vacate all

11 rulings in this case would run afoul of this important distinction. The Court found

12 Defendant guilty of criminal contempt. The President issued the pardon. Defendant

13 accepted. The pardon undoubtedly spared Defendant from any punishment that might

14 otherwise have been imposed. It did not, however, “revise the historical facts” of this

15 case. See 67A C.J.S. Pardon & Parole § 33.

16

IT IS ORDERED denying Defendant’s Motion for Vacatur and Dismissal with

17 Prejudice (Doc. 220) insofar as it seeks relief beyond dismissal with prejudice.

18

Dated this 19th day of October, 2017.

19

20

21

22

23

2 Defendant’s petition for writ of mandamus to require a jury trial of the criminal

24

contempt charge was summarily denied. In re Arpaio, --- S. Ct. ---, 2017 WL 2340260, at *1 (2017).

25

3 At oral argument, Defendant raised the possible preclusive effect of the Court’s

26

rulings as an additional reason to vacate all orders in this case. The speculative nature of this concern notwithstanding, the law actually counsels against further nullification on

27

this basis. See Bjerkan, 529 F.2d at 128 n.2 (“[T]he fact of conviction after a pardon cannot be taken into account in subsequent proceedings. However, the fact of the

28

commission of the crime may be considered. Therefore, although the effects of the commission of the offense linger after a pardon, the effects of the conviction are all but

wiped out.”); accord Noonan, 906 F.2d at 958-59.

- 4 -

 
 6/2/2020

17-10448 Docket

General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 17-10448 USA v. Joseph Arpaio Appeal From: U.S. District Court for Arizona, Phoenix Fee Status: Paid

Docketed: 10/20/2017 Termed: 02/27/2020

Case Type Information: 1) criminal 2) Other 3) null

Originating Court Information:

District: 0970-2 : 2:16-cr-01012-SRB-1

Court Reporter: Linda Schroeder

Trial Judge: Susan R. Bolton, District Judge

Date Filed: 08/19/2016

Date Order/Judgment:

Date Order/Judgment EOD:

10/19/2017

10/19/2017

Date NOA Filed: 10/19/2017

Date Rec'd COA: 10/19/2017

Prior Cases: 17-71094 Date Filed: 04/17/2017 Date Disposed: 05/18/2017 Disposition: Denied - Judge Order

Current Cases: None

UNITED STATES OF AMERICA Plaintiff - Appellee,
UNITED STATES OF AMERICA, SPECIAL PROSECUTOR Plaintiff - Appellee,
v.

Christopher G. Caldwell, Attorney Direct: 213-712-1390 [COR LD NTC Ind Prosecutor] 633 West Fifth Street Suite 1710 Los Angeles, CA 90071
John D. Keller Direct: 202-598-2231 [COR LD NTC Assist US Attorney] DOJ - U.S. DEPARTMENT OF JUSTICE Suite 12100 1400 New York Avenue, NW Washington, DC 20005
James I. Pearce, Trial Attorney Direct: 202-532-4991 [COR NTC Government] DOJ - U.S. Department of Justice room # 1314 950 Pennsylvania Avenue, NW Washington, DC 20530
Christopher G. Caldwell, Attorney Direct: 213-712-1390 [COR LD NTC Ind Prosecutor] (see above)

JOSEPH M. ARPAIO Defendant - Appellant,

Mark D. Goldman, Attorney Direct: 480-626-8483 [COR NTC Retained] Goldman & Zwillinger, PLLC Firm: (480) 626-8483 17851 North 85th Street Suite 175 Scottsdale, AZ 85255

Larry E. Klayman, Esquire, Attorney Direct: 310-595-0800

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-----------------------------COALITION TO PRESERVE, PROTECT AND DEFEND
Amicus Curiae,
FREE SPEECH FOR PEOPLE Amicus Curiae,

17-10448 Docket
[COR NTC Retained] Klayman Law Firm Suite 800 2020 Pennsylvania Avenue, NW Washington, DC 20006
Dennis I. Wilenchik, Esquire Direct: 602-606-2810 [COR NTC Retained] Wilenchik & Bartness, P.C. Suite 103 2810 North Third Street Phoenix, AZ 85004
John Wilenchik Direct: 602-606-2810 [COR NTC Retained] WILENCHIK & BARTNESS, P.C. 2810 North Third Street Phoenix, AZ 85004
Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] Perkins Coie 2901 North Central Avenue Suite 2000 Phoenix, AZ 85012-2788
Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] Free Speech For People 1320 Centre Street Suite 405 Newton, MA 02459
Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] Noah Messing Lobby #1 333 E. 43rd Street New York, NY 10017
David M. Shapiro, Esquire, Attorney Direct: 312-503-0711 [COR NTC Retained] Roderick and Solange MacArthur Justice Center 8th Floor 375 E. Chicago Avenue Chicago, IL 60611
Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)
Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)
Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] (see above)

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6/2/2020

17-10448 Docket
David M. Shapiro, Esquire, Attorney Direct: 312-503-0711 [COR NTC Retained] (see above)

PROTECT DEMOCRACY PROJECT, INC. Amicus Curiae,

Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)

Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)

Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] (see above)

David M. Shapiro, Esquire, Attorney Direct: 312-503-0711 [COR NTC Retained] (see above)

RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER Amicus Curiae,

Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)

Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)

Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] (see above)

David M. Shapiro, Esquire, Attorney Direct: 312-503-0711 [COR NTC Retained] (see above)

JONATHAN N. FOSTER Amicus Curiae - Pending,

Jonathan N. Foster [NTC Pro Se] 251 West 22nd St. Jacksonville, FL 32206

CERTAIN MEMBERS OF CONGRESS Amicus Curiae,

R. Bradley Miller, Attorney Direct: 919-608-0795 [COR LD NTC Retained] Guttman, Buschner & Brooks, PLLC 2000 P Street N.W Suite 300 Washington DC, DC 20036

Spencer Garrett Scharff, Esquire Direct: 602-739-4417 [COR LD NTC Retained] Scharff PLC 502 W. Roosevelt Street Phoenix, AZ 85004

ERWIN CHEMERINSKY, Esquire Amicus Curiae,

Dennis P. Riordan Direct: 415-431-3475 [COR LD NTC Retained] Riordan & Horgan 1611 Telegraph Avenue

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6/2/2020

17-10448 Docket
Suite 806 Oakland, CA 94102

MICHAEL E. TIGAR, Esquire, Attorney Amicus Curiae,

Dennis P. Riordan Direct: 415-431-3475 [COR LD NTC Retained] (see above)

JANE TIGAR Amicus Curiae,

Dennis P. Riordan Direct: 415-431-3475 [COR LD NTC Retained] (see above)

LAURENCE H. TRIBE, Esquire Amicus Curiae,

Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)

Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)

Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] (see above)

MARTIN H. REDISH Amicus Curiae,

Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)

Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)

Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] (see above)

LAWRENCE FRIEDMAN Amicus Curiae,

Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)

Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)

Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] (see above)

WILLIAM D. RICH Amicus Curiae,

Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)

Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)

Noah A. Messing Direct: 203-500-6293

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CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
Amicus Curiae,
MOVEON Amicus Curiae,
REPUBLICANS FOR THE RULE OF LAW Amicus Curiae,

17-10448 Docket
[COR LD NTC Retained] (see above)
Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)
Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)
Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] (see above)
Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)
Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)
Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] (see above)
Jean-Jacques Cabou, Esquire, Attorney Direct: 602-351-8000 [COR LD NTC Retained] (see above)
Ronald A. Fein, Legal Director Direct: 617-244-0234 [COR LD NTC Retained] (see above)
Noah A. Messing Direct: 203-500-6293 [COR LD NTC Retained] (see above)

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17-10448 Docket

UNITED STATES OF AMERICA; UNITED STATES OF AMERICA, SPECIAL PROSECUTOR,

Plaintiffs - Appellees,

v.

JOSEPH M. ARPAIO,

Defendant - Appellant.

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17-10448 Docket

10/20/2017

1
12 pg, 320.22 KB

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. Reporters Transcript required: Yes. Sentence imposed: N/A. Transcript ordered by 11/09/2017. Transcript due 12/11/2017. Appellant briefs and excerpts due by 01/18/2018 for Joseph M. Arpaio. Appellee brief due 02/20/2018 for United States of America. Appellant's optional reply brief is due 21 days after service of the answering brief. [10625317] (WL) [Entered: 10/20/2017 10:37 AM]

10/26/2017

2

Filed (ECF) notice of appearance of James I. Pearce for Appellee USA. Date of service: 10/26/2017.

2 pg, 77.53 KB [10631872] [17-10448] (Pearce, James) [Entered: 10/26/2017 04:31 AM]

10/26/2017

3

Added attorney James I. Pearce for USA, in case 17-10448. [10631881] (JJF) [Entered: 10/26/2017 06:59 AM]

10/30/2017

4

2 pg, 269.07 KB

Filed clerk order (Deputy Clerk: DJV): A review of the record suggests that this court may lack jurisdiction over the appeal because the district court’s order, entered on October 19, 2017, denying appellant’s motion for vacatur and dismissal with prejudice is not appealable as a final judgment or an order that comes within the collateral order doctrine. See 28 U.S.C. § 1291; Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989) (stating that finality requirement generally “prohibits appellate review until after conviction and imposition of sentence”). Within 21 days after the date of this order, appellant shall move for voluntary dismissal of the appeal or show cause why it should not be dismissed for lack of jurisdiction. If appellant elects to show cause, a response may be filed within 10 days after service of the memorandum. Failure to comply with this order may result in the dismissal of the appeal for failure to prosecute. See 9th Cir. R. 421. Briefing is suspended pending further order of the court. [10636188] (WL) [Entered: 10/30/2017 01:26 PM]

11/08/2017

5
58 pg, 204.42 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by The Protect Democracy Project, Inc.; Free Speech for People; Coalition to Preserve, Protect and Defend; and Roderick and Solange MacArthur Justice Center. Date of service: 11/08/2017. [10647802] [17-10448]-[COURT UPDATE: Attached corrected PDFs of motion and brief. 11/09/2017 by RY] (Cabou, JeanJacques) [Entered: 11/08/2017 11:23 AM]

11/09/2017

6

Entered appearance of Amici Curiae - Pending Protect Democracy Project, Inc., Free Speech For People, Coalition to Preserve, Protect and Defend and Roderick and Solange MacArthur Justice Center. [10649232] (KWG) [Entered: 11/09/2017 10:17 AM]

11/20/2017

7

5 pg, 37.02 KB

Filed (ECF) Appellant Joseph M. Arpaio response opposing motion ([5] Brief Submitted for Review (ECF Filing), [5] Motion (ECF Filing), [5] Motion (ECF Filing) motion to become amicus). Date of service: 11/20/2017. [10661183] [17-10448] (Wilenchik, Dennis) [Entered: 11/20/2017 02:01 PM]

11/20/2017

8

Filed (ECF) Appellant Joseph M. Arpaio response to Court order dated 10/30/2017. Date of service:

9 pg, 55.46 KB 11/20/2017. [10661236] [17-10448] (Wilenchik, Dennis) [Entered: 11/20/2017 02:15 PM]

11/22/2017

9

2 pg, 198.57 KB

Filed order (A. WALLACE TASHIMA, WILLIAM A. FLETCHER and RICHARD C. TALLMAN) The motion for leave to participate as amici curae, filed by The Protect Democracy Project, Inc., Free Speech For People, Coalition to Preserve, Protect and Defend, and the Roderick and Solange Macarthur Justice Center, (Docket Entry No. [5]) is granted in part and denied in part. The Clerk shall file the proposed brief of amici curae at Docket Entry No. [5]. Amici curae may also file a supplemental brief addressing the merits of this appeal that complies with Federal Rule of Appellate Procedure 29. The emergency request for the appointment of a special prosecutor under Fed. R. Crim. P. 42(a)(2) to “notice a cross-appeal of the District Court’s Order upholding validity of the Pardon and terminating the contempt prosecution,” contained within the brief at Docket Entry No. [5], is denied. Within 21 days after the date of this order, appellee United States of America shall file a statement indicating whether it intends to enter an appearance and file an answering brief in this appeal from the district court’s November 19, 2017 order. In appellee United States of America’s statement, in the event it is the position of the Department of Justice not to defend the November 19 order, appellee shall also provide its position on whether this court should appoint counsel to represent the government’s interests on appeal and defend the district court’s order. Appellant and Amici may file an optional reply within 7 days after service of appellee’s statement. The request for the appointment of counsel to “defend the District Court’s Order denying [appellant’s] request for vacatur,” contained within the brief at Docket Entry No. [5], shall be addressed by separate order. Proceedings are held in abeyance pending further order of this court. [10664619] (ME) [Entered: 11/22/2017 12:14 PM]

11/22/2017

10

2 pg, 188.44 KB

Filed clerk order: The amicus brief [5] submitted by Coalition to Preserve, Protect and Defend, Free Speech For People, Protect Democracy Project, Inc. and Roderick and Solange MacArthur Justice Center is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: green. The paper copies shall be printed from the PDF version of the brief created from the word processing application, not from PACER or Appellate CM/ECF. [10665004] (KT) [Entered: 11/22/2017 02:24 PM]

11/28/2017

11

Received 7 paper copies of Amicus Brief [5] filed by Coalition to Preserve, Protect and Defend, et al.. [10669040] (SD) [Entered: 11/28/2017 10:43 AM]

12/13/2017

12

Filed (ECF) Appellee USA response to Court order dated 11/22/2017. Date of service: 12/13/2017.

3 pg, 84.22 KB [10688578] [17-10448] (Pearce, James) [Entered: 12/13/2017 08:12 AM]

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12/20/2017

13

7 pg, 29.98 KB

17-10448 Docket
Filed (ECF) Amici Curiae Protect Democracy Project, Inc., Roderick and Solange MacArthur Justice Center, Free Speech For People and Coalition to Preserve, Protect and Defend reply to response to Court order dated 11/22/2017. Date of service: 12/20/2017. [10697523] [17-10448] (Cabou, Jean-Jacques) [Entered: 12/20/2017 12:24 PM]

12/20/2017

14

Filed (ECF) Appellant Joseph M. Arpaio reply to response to Court Order dated 11/22/2017. Date of

10 pg, 57.92 KB service: 12/20/2017. [10698029] [17-10448]--[COURT UPDATE: Edited docket text to reflect correct filing

type. 12/20/2017 by RY] (Wilenchik, Dennis) [Entered: 12/20/2017 03:07 PM]

12/21/2017

15

COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [18]. Original Text: Filed (ECF) Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar Motion to become amicus curiae. Date of service: 12/21/2017. [10699467] [17-10448] (Riordan, Dennis) [Entered: 12/21/2017 12:06 PM]

12/21/2017

18

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Erwin

40 pg, 285.67 KB Chemerinsky, Michael E. Tigar, and Jane B. Tigar. Date of service: 12/21/2017. [10704677] --[COURT

ENTERED FILING to correct entries [15], [16] and [17] .] (TYL) [Entered: 12/27/2017 12:18 PM]

12/22/2017

16

COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [18]. Original Text: Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar Supporting Denial of Vacatur. Date of service: 12/22/2017. [10701519] [17-10448] (Riordan, Dennis) [Entered: 12/22/2017 12:19 PM]

12/26/2017

17

COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [18]. Original Text: Filed (ECF) Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar Motion to become amicus curiae. Date of service: 12/26/2017. [10703941] [17-10448] (Riordan, Dennis) [Entered: 12/26/2017 05:11 PM]

12/27/2017

19

Entered appearance of Amici Curiae - Pending Erwin Chemerinsky, Michael E. Tigar and Jane Tigar. [10704886] (KT) [Entered: 12/27/2017 01:44 PM]

01/02/2018

20

6 pg, 41.98 KB

Filed (ECF) Appellant Joseph M. Arpaio response to motion ([18] Motion (ECF Filing), [18] Motion (ECF Filing) motion to become amicus). Date of service: 01/02/2018. [10710244] [17-10448] (Wilenchik, Dennis) [Entered: 01/02/2018 07:12 PM]

01/18/2018

21

Filed (ECF) Appellant Joseph M. Arpaio Motion to file oversized brief. Date of service: 01/18/2018.

7 pg, 248.81 KB [10729817] [17-10448] (Wilenchik, Dennis) [Entered: 01/18/2018 06:29 PM]

01/18/2018

22

STRICKEN PER ORDER [47]. Submitted (ECF) Opening Brief for review. Submitted by Appellant Joseph M. Arpaio. Date of service: 01/18/2018. [10729819] [17-10448] (Wilenchik, Dennis) [Entered: 01/18/2018 06:31 PM]

01/18/2018

23

Submitted (ECF) excerpts of record. Submitted by Appellant Joseph M. Arpaio. Date of service:

847 pg, 18.08 MB 01/18/2018. [10729821] [17-10448] --[COURT UPDATE: Attached corrected excerpts of record. 1/19/2018

by TYL] (Wilenchik, Dennis) [Entered: 01/18/2018 06:34 PM]

01/18/2018

24

Filed (ECF) Appellant Joseph M. Arpaio Motion to transmit exhibit. Date of service: 01/18/2018.

3 pg, 121.77 KB [10729825] [17-10448] (Wilenchik, Dennis) [Entered: 01/18/2018 06:38 PM]

04/17/2018

25
15 pg, 111.95 KB

Filed Order for PUBLICATION (A. WALLACE TASHIMA, WILLIAM A. FLETCHER and RICHARD C. TALLMAN) (Dissent by Judge Tallman) This case is on appeal from the district court’s denial of DefendantAppellant’s request for vacatur of his conviction for criminal contempt. The validity of the district court’s denial will be addressed by the merits panel assigned to this case. We address only the question of whether to appoint a special prosecutor to defend the district court’s decision in light of the United States’ letter informing this Court that “[t]he government does not intend to defend the district court’s order.” For the reasons discussed below, we will appoint a special prosecutor to provide briefing and argument to the merits panel. (SEE ORDER FOR FULL TEXT) We will appoint special counsel and address all other pending motions by separate order. SO ORDERED. [10839081] (RMM) [Entered: 04/17/2018 07:23 AM]

06/01/2018

26

2 pg, 43.34 KB

Filed Order for PUBLICATION (Sidney R. Thomas, Chief Judge and En Banc Coordinator): A judge has made a sua sponte request for a vote on whether to rehear en banc the published order dated April 17, 2018 by a motions panel of this Court appointing a special prosecutor to defend the district court’s denial of defendant Arpaio’s request for vacatur of his criminal contempt conviction. United States v. Arpaio, 887 F.3d 979 (9th Cir. 2018). Therefore, pursuant to General Order 5.4(c)(3), the parties are requested to file simultaneous briefs setting forth their respective positions on whether or not the order should be reheard en banc. Specifically, the parties are directed to address the question as to whether the Court has the authority, either pursuant to Fed. R. Crim. P. 42(a)(2) or under its inherent authority, to appoint a special prosecutor under the circumstances presented by this case. The briefs are not to exceed 7,000 words and shall be filed within 21 days of the date of this order. Amici are permitted, but not required, to file a brief within 21 days of the date of this order not to exceed 7,000 words stating their positions on whether the order should be reheard en banc. Parties or Amici who are registered for appellate electronic case filing must file the response electronically without submission of paper copies. Parties or Amici who are not

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registered appellate electronic case filing filers must file 50 paper copies. [10892715] (AF) [Entered: 06/01/2018 08:43 AM]

06/07/2018

27

Entered appearance of Amicus Curiae - Pending Jonathan N. Foster. [10901961] (SML) [Entered: 06/08/2018 11:35 AM]

06/08/2018

28

Received original and 0 copies of Amicus Curiae - Pending Jonathan N. Foster brief in 3 pages. Served

4 pg, 492.95 KB on: 06/04/2018. Major deficiencies: motion to become amicus curiae is required. Notified prospective

amicus curiae. [10901978] (SML) [Entered: 06/08/2018 11:38 AM]

06/22/2018

29

COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [31]. Original Text: Filed (ECF) Appellee USA response to Court order dated 06/01/2018. Date of service: 06/22/2018. [10918184] [17-10448] (Pearce, James) [Entered: 06/22/2018 04:46 AM]

06/22/2018

30
20 pg, 109.39 KB

Submitted (ECF) Amicus Brief for review. Submitted by Amici Curiae Protect Democracy Project, Inc., Coalition to Preserve, Protect and Defend, Free Speech For People and Roderick and Solange MacArthur Justice Center. Date of service: 06/22/2018. [10918894] [17-10448]--[COURT UPDATE: Attached corrected brief. 06/25/2018 by SLM] (Cabou, Jean-Jacques) [Entered: 06/22/2018 12:30 PM]

06/22/2018

31

Submitted (ECF) Supplemental Brief for review. Submitted by Appellee USA. Date of service: 06/22/2018.

22 pg, 215.65 KB [10919385] --[COURT ENTERED FILING to correct entry [29] .] (TYL) [Entered: 06/22/2018 03:04 PM]

06/22/2018

32

COURT DELETED INCORRECT ENTRY. Notice about deletion sent to case participants registered for electronic filing. Brief and motion refiled using correct filing type in Entry: [36]. Original Text: Filed (ECF) Certain Members of the Congress of the United States Motion to become amicus curiae. Date of service: 06/22/2018. [10919397] [17-10448] (Scharff, Spencer) [Entered: 06/22/2018 03:10 PM]

06/22/2018

33

Filed clerk order: The supplemental brief [31] submitted by USA is filed. No paper copies are required at

1 pg, 181.77 KB this time. [10919417] (SML) [Entered: 06/22/2018 03:14 PM]

06/22/2018

34

Submitted (ECF) Supplemental Brief for review. Submitted by Appellant Joseph M. Arpaio. Date of service:

11 pg, 913.23 KB 06/22/2018. [10919494] [17-10448]--[COURT UPDATE: Attached corrected PDF of brief. 06/26/2018 by

RY] (Wilenchik, Dennis) [Entered: 06/22/2018 03:34 PM]

06/22/2018

36
18 pg, 216.96 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Certain Members of the Congress of the United States. Date of service: 06/22/2018. [10921996] [17-10448]-[COURT UPDATE: Backdated entry to reflect original submission date (06/22/2018). 06/26/2018 by RY] (Scharff, Spencer) [Entered: 06/26/2018 09:36 AM]

06/25/2018

35

Filed clerk order: The amicus brief [30] submitted by Coalition to Preserve, Protect and Defend, Free

1 pg, 184.38 KB Speech For People, Protect Democracy Project, Inc. and Roderick and Solange MacArthur Justice Center

is filed. No paper copies are required at this time. [10921603] (SML) [Entered: 06/25/2018 04:49 PM]

06/26/2018

37

1 pg, 39.78 KB

Filed order (A. WALLACE TASHIMA, WILLIAM A. FLETCHER and RICHARD C. TALLMAN) The motion by Certain Members of Congress for leave to file an amicus curiae brief in “Support of a Rule 42 Special Prosecutor Appointment” (Dkt. [36]), is GRANTED. The amicus brief, received on June 22, 2018, is ordered FILED, and shall be circulated to the full court. [10922194] --[COURT UPDATE: To edit docket and replaced with corrected order; resent NDA - 06/26/2018 by HH] (WL) [Entered: 06/26/2018 10:34 AM]

06/26/2018

38

Entered appearance of Amicus Curiae - Pending Certain Members of Congress. [10922338] (SML) [Entered: 06/26/2018 11:05 AM]

06/26/2018

39

Filed clerk order: The amicus brief [36] submitted by Certain Members of Congress is filed. No paper

1 pg, 182.83 KB copies are required at this time. [10922763] (SML) [Entered: 06/26/2018 01:40 PM]

06/26/2018

40

Filed clerk order: The supplemental brief [34] submitted by Joseph M. Arpaio is filed. No paper copies are

1 pg, 181.76 KB required at this time. [10922774] (SML) [Entered: 06/26/2018 01:43 PM]

10/10/2018

41
27 pg, 138.78 KB

Filed Order for PUBLICATION (A. WALLACE TASHIMA, WILLIAM A. FLETCHER and RICHARD C. TALLMAN) (Concurrence by Judge W. Fletcher; Statement by Judge Tashima; Dissent by Judge Callahan; Statement by Judge Tallman) A judge of the court sua sponte called for a vote on whether to rehear en banc the published order in this case dated April 17, 2018. A vote was taken, and a majority of the nonrecused active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f). Rehearing en banc is DENIED. [11040129]--[Edited: attached corrected PDF of Order (typo corrected). 08/22/2019 by SLM] (RMM) [Entered: 10/10/2018 07:16 AM]

10/15/2018

42

3 pg, 52.83 KB

Filed order (A. WALLACE TASHIMA, WILLIAM A. FLETCHER and RICHARD C. TALLMAN, concurrence) On April 17, 2018, our Court issued an order authorizing the appointment of a “special prosecutor to provide briefing and argument to the merits panel” that will hear the appeal of former sheriff Joe Arpaio from the district court’s denial of his motion to vacate his conviction for contempt of court. United States v. Arpaio, 887 F.3d 979, 980 (9th Cir. 2018). On October 10, 2018, our Court denied en banc rehearing of that order. United States v. Arpaio, No. 17-10448, 2018 WL 4904770 (9th Cir. Oct. 10, 2018). Pursuant to our April 17, 2018 order, we hereby appoint Christopher G. Caldwell as special prosecutor for purposes of this appeal. The special prosecutor will be limited to the functions a government attorney would have

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performed in connection with Arpaio’s appeal in this Court had the government been willing to perform those functions. The Clerk shall amend the docket to reflect that Christopher G. Caldwell Boies, Schiller and Flexner 725 S. Figueroa Street Los Angeles, CA 90017 (213) 629-9040 is added as additional counsel of record for appellee United States of America. Within 14 days after the date of this order, special prosecutor Caldwell shall register on the Court’s website for electronic filing/noticing with the Case Management Electronic Case Files (CM/ECF) system if he is not already registered. A briefing schedule will be established by separate order. [11047329] (WL) [Entered: 10/15/2018 03:05 PM]

10/15/2018

43

Added attorney Christopher G. Caldwell for USA, in case 17-10448. [11047342] (WL) [Entered: 10/15/2018 03:09 PM]

10/22/2018

44

Filed (ECF) Appellee USA Motion to stay the mandate. Includes a stay of briefing schedule. Date of

5 pg, 102.93 KB service: 10/22/2018. [11056285] [17-10448] --[COURT UPDATE: Updated docket text to reflect content of

filing. 10/23/2018 by TYL] (Pearce, James) [Entered: 10/22/2018 06:50 PM]

10/25/2018

45

2 pg, 195.67 KB

Filed order (A. WALLACE TASHIMA, WILLIAM A. FLETCHER and RICHARD C. TALLMAN) We have received appellee’s October 22, 2018 “motion to stay the mandate and the briefing schedule.” To the extent that appellee requests this court stay the issuance of the mandate in this appeal, such request is unnecessary. Because proceedings in this appeal remain ongoing, there is no mandate to stay. To the extent that appellee requests this court stay the briefing schedule for this appeal, the request is granted (Docket Entry No. [44]). Within 90 days after the date of this order, or within 7 days after the Solicitor General’s determination whether to file a petition for writ of certiorari from this court’s April 17, 2018 and October 15, 2018 orders, whichever occurs first, appellee shall submit a status report, or file a motion for the appropriate relief. Failure to file a timely report or motion in response to this order may result in a termination of the stay of proceedings. Briefing is stayed pending further order of this court. [11060905] (OC) [Entered: 10/25/2018 04:30 PM]

01/02/2019

46

Filed (ECF) Appellee USA status report (as required by Court order dated 10/25/2018). Date of service:

3 pg, 87.96 KB 01/02/2019 [11138524] [17-10448] (Pearce, James) [Entered: 01/02/2019 10:46 AM]

01/04/2019

47

2 pg, 196.19 KB

Filed order (A. WALLACE TASHIMA, WILLIAM A. FLETCHER and RICHARD C. TALLMAN) We have received appellee’s January 2, 2019 status report stating that “the Solicitor General determined that the government will not seek certiorari in the Supreme Court.” Accordingly, the stay of proceedings in this court is lifted. The October 30, 2017 order to show cause is discharged. The motion of Erwin Chemerinski, Michael E. Tigar, and Jane B. Tigar to participate as amicus curiae (Docket Entry No. [18]) and the response (Docket Entry No. [20]) are referred to the panel assigned to decide the merits of this appeal. Appellant’s motion to file an oversize brief (Docket Entry No. [21]) is denied. The Clerk shall strike the opening brief at Docket Entry No. [22]. By February 19, 2019 appellant shall file an opening brief that complies with the length limits set forth in 9th Cir. R. 32-1. The answering brief is due March 21, 2019. The optional reply brief is due within 21 days after service of the answering brief. The motion to transmit a physical exhibit (Docket Entry No. [24]) will be addressed by separate order. [11142360] (JBS) [Entered: 01/04/2019 03:43 PM]

02/19/2019

48

Submitted (ECF) Opening Brief for review. Submitted by Appellant Joseph M. Arpaio. Date of service:

59 pg, 673.67 KB 02/19/2019. [11200004] [17-10448]--[COURT UPDATE: Attached corrected PDF of brief. 02/21/2019 by

RY] (Wilenchik, Dennis) [Entered: 02/19/2019 03:48 PM]

02/21/2019

49

2 pg, 191.02 KB

Filed clerk order: The opening brief [48] submitted by Joseph M. Arpaio is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: blue. The Court has reviewed the excerpts of record [23] submitted by Joseph M. Arpaio. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format securely bound on the left side, with white covers. The paper copies shall be submitted to the principal office of the Clerk. [11203185] (SML) [Entered: 02/21/2019 03:10 PM]

02/27/2019

50

Filed (ECF) Streamlined request for extension of time to file Answering Brief by Appellee USA. New requested due date is 04/22/2019. [11208926] [17-10448] (Pearce, James) [Entered: 02/27/2019 04:12 AM]

02/27/2019

51

Streamlined request [50] by Appellee USA to extend time to file the brief is approved. Amended briefing schedule: Appellee brief due 04/22/2019 for United States of America. The optional reply brief is due 21 days from the date of service of the answering brief. [11209766] (Witt, Dusty) [Entered: 02/27/2019 01:18 PM]

03/01/2019

52

Filed 4 paper copies of excerpts of record [23] in 4 volume(s) filed by Appellant Joseph M. Arpaio. [11212770] (SML) [Entered: 03/01/2019 10:58 AM]

03/01/2019

53

Received 7 paper copies of Opening Brief [48] filed by Joseph M. Arpaio. [11213345] (DB) [Entered: 03/01/2019 02:42 PM]

04/11/2019

54

Filed (ECF) Appellee USA Correspondence: Response brief to be filed by the United States. Date of

2 pg, 84.41 KB service: 04/11/2019 [11260577] [17-10448] (Pearce, James) [Entered: 04/11/2019 10:44 AM]

04/22/2019

55

Submitted (ECF) Answering Brief for review. Submitted by Appellee USA. Date of service: 04/22/2019.

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34 pg, 277.43 KB [11272819] [17-10448] (Pearce, James) [Entered: 04/22/2019 04:48 PM]

04/22/2019

56
71 pg, 461.32 KB

Submitted (ECF) Answering Brief for review. Submitted by Appellee USA, Special Prosecutor. Date of service: 04/22/2019. [11272966] [17-10448] --[COURT UPDATE: Updated docket text to reflect correct party filer. 4/24/2019 by TYL]--[Edited: Attached corrected PDF of brief. 04/24/2019 by RY] (Caldwell, Christopher) [Entered: 04/22/2019 11:48 PM]

04/22/2019

57

Submitted (ECF) excerpts of record. Submitted by Appellee USA, Special Prosecutor. Date of service:

542 pg, 18.95 MB 04/22/2019. [11272967] [17-10448] --[COURT UPDATE: Updated docket text to reflect correct party filer.

4/24/2019 by TYL] (Caldwell, Christopher) [Entered: 04/22/2019 11:50 PM]

04/24/2019

58

Entered appearance of Appellee United States of America, Special Prosecutor. [11275174] (TYL) [Entered: 04/24/2019 11:04 AM]

04/24/2019

59

Terminated Christopher G. Caldwell for USA in 17-10448 [11275299] (TYL) [Entered: 04/24/2019 11:38 AM]

04/24/2019

60

2 pg, 190.64 KB

Filed clerk order: The answering brief [55] submitted by USA is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: red. The paper copies shall be submitted to the principal office of the Clerk. [11275337] (SML) [Entered: 04/24/2019 11:48 AM]

04/24/2019

61

2 pg, 191.04 KB

Filed clerk order: The answering brief [56] submitted by USA, Special Prosecutor is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: red. The Court has reviewed the excerpts of record [57] submitted by USA, Special Prosecutor. Within 7 days of this order, filer is ordered to file 4 copies of the excerpts in paper format securely bound on the left side, with white covers. The paper copies shall be submitted to the principal office of the Clerk. [11275346] (SML) [Entered: 04/24/2019 11:51 AM]

04/26/2019

62

Received 7 paper copies of Answering Brief [55] filed by USA. [11278699] (DB) [Entered: 04/26/2019 11:45 AM]

04/29/2019

63

4 pg, 72.24 KB

Filed (ECF) Amici Curiae Coalition to Preserve, Protect and Defend, Free Speech For People, Protect Democracy Project, Inc. and Roderick and Solange MacArthur Justice Center Motion for miscellaneous relief [Motion for Leave for Additional Parties to Join Brief of Amici Curiae]. Date of service: 04/29/2019. [11281130] [17-10448] (Cabou, Jean-Jacques) [Entered: 04/29/2019 04:42 PM]

04/29/2019

64
49 pg, 338.96 KB

Submitted (ECF) Amicus brief for review (by government or with consent per FRAP 29(a)). Submitted by L.TRIBE;M. REDISH;L. FRIEDMAN;W. RICH;CITIZENS FOR RESPONSIBILITY & ETHICS IN WASHINGTON;COALITION TO PRESERVE, PROTECT & DEFEND;FREE SPEECH FOR PEOPLE;MOVEON;THE PROTECT DEMOCRACY PROJECT;REPUBLICANS FOR THE RULE OF LAW; RODERICK&SOLANGE MACARTHUR JUSTIC. Date of service: 04/29/2019. [11281152] [17-10448] (Cabou, Jean-Jacques) [Entered: 04/29/2019 04:52 PM]

04/29/2019

65
25 pg, 347.89 KB

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Certain Members of the Congress of the United States. Date of service: 04/29/2019. [11281191] [17-10448] -[COURT UPDATE: Attached corrected motion. 5/1/2019 by TYL] (Scharff, Spencer) [Entered: 04/29/2019 05:25 PM]

05/01/2019

66

Filed 4 paper copies of excerpts of record [57] in 2 volume(s) filed by Appellee USA, Special Prosecutor. [11283246] (SML) [Entered: 05/01/2019 11:14 AM]

05/01/2019

67

Deleted Duplicate Entry. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [38]. Original Text: Entered appearance of Amicus Curiae - Pending Certain Members of Congress. [11283507] (SML) [Entered: 05/01/2019 01:18 PM]

05/01/2019

68

Received 7 paper copies of Answering Brief [56] filed by USA, Special Prosecutor. [11283880] (DB) [Entered: 05/01/2019 03:52 PM]

05/08/2019

69

1 pg, 94.54 KB

Filed clerk order (Deputy Clerk: LAB): The motion for additional parties to join in the brief of amici curae (Docket Entry No. [63]) and motion for leave to file an amicus curiae brief (Docket Entry No. [65]) are referred to the panel assigned to hear the merits of this appeal. The previously established briefing schedule remains in effect. [11290628] (OC) [Entered: 05/08/2019 11:38 AM]

05/09/2019

70

Filed (ECF) notice of appearance of Larry Elliot Klayman for Appellant Joseph M. Arpaio. Date of service: 05/09/2019. (Party previously proceeding without counsel: No) [11292042] [17-10448] (Klayman, Larry) [Entered: 05/09/2019 11:30 AM]

05/09/2019

71

Added attorney Larry E. Klayman for Joseph M. Arpaio, in case 17-10448. [11292071] (JFF) [Entered: 05/09/2019 11:45 AM]

05/13/2019

72

Submitted (ECF) Reply Brief for review. Submitted by Appellant Joseph M. Arpaio. Date of service:

31 pg, 376.41 KB 05/13/2019. [11295773] [17-10448] (Wilenchik, Dennis) [Entered: 05/13/2019 04:01 PM]

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05/13/2019

73

2 pg, 190.57 KB

17-10448 Docket
Filed clerk order: The reply brief [72] submitted by Joseph M. Arpaio is filed. Within 7 days of the filing of this order, filer is ordered to file 7 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: gray. The paper copies shall be submitted to the principal office of the Clerk. [11295909] (SML) [Entered: 05/13/2019 04:44 PM]

05/14/2019

74

Filed (ECF) Appellant Joseph M. Arpaio response opposing motion ([65] Motion (ECF Filing), [65] Motion

13 pg, 161.11 KB (ECF Filing) motion to become amicus). Date of service: 05/14/2019. [11296585] [17-10448] (Klayman,

Larry) [Entered: 05/14/2019 11:24 AM]

05/15/2019

75

1 pg, 95.67 KB

Filed clerk order (Deputy Clerk: HG): Appellant’s unopposed motion pursuant to 9th Cir. R. 27-14 (Docket Entry No. [24]) to submit to this Court an audio CD, which was admitted as an exhibit at trial but is not electronically available on the district court docket, is granted. Counsel shall submit four copies of the exhibit within seven days after the date of this order. [11298715] (OC) [Entered: 05/15/2019 01:41 PM]

05/16/2019

76

Received 7 paper copies of Reply Brief [72] filed by Joseph M. Arpaio. [11299826] (SD) [Entered: 05/16/2019 10:46 AM]

05/16/2019

77

Filed (ECF) Amicus Curiae - Pending Certain Members of Congress reply to response (). Date of service:

5 pg, 163.7 KB 05/16/2019. [11300019] [17-10448] (Scharff, Spencer) [Entered: 05/16/2019 12:05 PM]

05/16/2019

78

This case is being considered for an upcoming oral argument calendar in San Francisco

Please review the San Francisco sitting dates for September 2019 and the 2 subsequent sitting months in that location at http://www.ca9.uscourts.gov/court_sessions. If you have an unavoidable conflict on any of the dates, please file Form 32 within 3 business days of this notice using the CM/ECF filing type Response to Case Being Considered for Oral Argument. Please follow the form's instructions carefully.

When setting your argument date, the court will try to work around unavoidable conflicts; the court is not able to accommodate mere scheduling preferences. You will receive notice that your case has been assigned to a calendar approximately 10 weeks before the scheduled oral argument date.

05/17/2019

79

1 pg, 691.61 KB

05/20/2019

80

1 pg, 103.39 KB

05/20/2019

81

05/21/2019

82

1 pg, 691.32 KB

05/23/2019

83

06/14/2019

84

If the parties wish to discuss settlement before an argument date is set, they should jointly request referral to the mediation unit by filing a letter within 3 business days of this notice, using CM/ECF (Type of Document: File Correspondence to Court; Subject: request for mediation).[11300266] (AW) [Entered: 05/16/2019 01:51 PM]
Filed (ECF) Attorney Mr. James I. Pearce for Appellee USA response to notice for case being considered for oral argument. Date of service: 05/17/2019. [11301083] [17-10448] (Pearce, James) [Entered: 05/17/2019 09:43 AM]
Filed (ECF) Attorney Mr. Christopher G. Caldwell for Appellee USA, Special Prosecutor response to notice for case being considered for oral argument. Date of service: 05/20/2019. [11302831] [17-10448] (Caldwell, Christopher) [Entered: 05/20/2019 12:22 PM]
Received Appellant Joseph M. Arpaio's 4 BLANK CDs labeled "Exhibit 45 (in reference to Doc 24)." Deficiency: CDs are blank. Within 7 days of this entry, appellant shall submit 4 replacement copies of the audio exhibit ordered on 05/15/2019 at entry [75]. 9th Cir. R. 25-5(g). Sent to deficiency shelf in Docketing. [11303494] (LA) [Entered: 05/20/2019 04:13 PM]
Filed (ECF) Attorney Spencer Garrett Scharff, Esquire for Amicus Curiae Certain Members of Congress and Amicus Curiae - Pending Certain Members of Congress response to notice for case being considered for oral argument. Date of service: 05/21/2019. [11303775] [17-10448] (Scharff, Spencer) [Entered: 05/21/2019 07:58 AM]
Filed 4 copies of CDs containing Exhibit 45 filed by Appellant Joseph M. Arpaio. Sent to Records. [11307706] (SML) [Entered: 05/23/2019 02:39 PM]
This case is being considered for an upcoming oral argument calendar in San Francisco

Please review the San Francisco sitting dates for October 2019 and the 2 subsequent sitting months in that location at http://www.ca9.uscourts.gov/court_sessions. If you have an unavoidable conflict on any of the dates, please file Form 32 within 3 business days of this notice using the CM/ECF filing type Response to Case Being Considered for Oral Argument. Please follow the form's instructions carefully.

When setting your argument date, the court will try to work around unavoidable conflicts; the court is not able to accommodate mere scheduling preferences. You will receive notice that your case has been assigned to a calendar approximately 10 weeks before the scheduled oral argument date.

If the parties wish to discuss settlement before an argument date is set, they should jointly request referral to the mediation unit by filing a letter within 3 business days of this notice, using CM/ECF (Type of Document: File Correspondence to Court; Subject: request for mediation).[11332657][17-10448] (AW) [Entered: 06/14/2019 04:51 PM]

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Filed (ECF) Attorney Mr. Christopher G. Caldwell for Appellee USA, Special Prosecutor response to notice for case being considered for oral argument. Date of service: 06/18/2019. [11335695] [17-10448] (Caldwell, Christopher) [Entered: 06/18/2019 12:23 PM]
Added Attorney(s) Noah A. Messing, Ronald A. Fein for party(s) Amici Curiae Free Speech For People, Protect Democracy Project, Inc., Coalition to Preserve, Protect and Defend, Roderick and Solange MacArthur Justice Center, in case 17-10448. [11359616] (LA) [Entered: 07/10/2019 02:34 PM]
Entered appearance of Amici Curiae - Pending Laurence H. Tribe, Martin H. Redish, Lawrence Friedman, William D. Rich, Citizens for Responsibility and Ethics in Washington, MoveOn, and Republicans for the Rule of Law. [11359659] (LA) [Entered: 07/10/2019 02:54 PM]
Filed clerk order: Per the order filed on May 8, 2019 at Docket Entry No. [69], the amicus brief [64] submitted by Laurence H. Tribe, Martin H. Redish, Lawrence Friedman, William D. Rich, Citizens for Responsibility and Ethics in Washington, Coalition to Preserve, Protect and Defend, Free Speech For People, Inc., MoveOn, Protect Democracy Project, Republicans for the Rule of Law, and Roderick and Solange MacArthur Justice Center is referred to the merits panel. Within 7 days of the filing of this order, filer is ordered to submit 7 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: green. The paper copies shall be submitted to the principal office of the Clerk. [11359713] (LA) [Entered: 07/10/2019 03:21 PM]
Filed clerk order: Per the order filed on May 8, 2019 at Docket Entry No. [69], the amicus brief [65] submitted by Certain Members of Congress is referred to the merits panel. Within 7 days of the filing of this order, filer is ordered to submit 7 copies of the brief in paper format, accompanied by certification (attached to the end of each copy of the brief) that the brief is identical to the version submitted electronically. Cover color: green. The paper copies shall be submitted to the principal office of the Clerk. [11359724] (LA) [Entered: 07/10/2019 03:27 PM]
Received 7 paper copies of Amicus Brief [64] filed by Laurence H. Tribe, Martin H. Redish, Lawrence Friedman, William D. Rich, Citizens for Responsibility and Ethics in Washington, Coalition to Preserve, Protect and Defend, Free Speech For People, Inc., MoveOn, Protect Democracy Project, Republicans for the Rule of Law, and Roderick and Solange MacArthur Justice Center. [11365242] (DB) [Entered: 07/16/2019 01:32 PM]
Received 7 paper copies of Amicus Brief [65] filed by Certain Members of Congress. [11375315] (SD) [Entered: 07/24/2019 01:49 PM]
Notice of Oral Argument on Wednesday, October 23, 2019 - 09:00 A.M. - Courtroom 2 - San Francisco CA.

View the Oral Argument Calendar for your case here.

Be sure to review the GUIDELINES for important information about your hearing, including when to arrive (30 minutes before the hearing time) and when and how to submit additional citations (filing electronically as far in advance of the hearing as possible).

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If you are the specific attorney or self-represented party who will be arguing, use the ACKNOWLEDGMENT OF HEARING NOTICE filing type in CM/ECF no later than 21 days before Wednesday, October 23, 2019. No form or other attachment is required. If you will not be arguing, do not file an acknowledgment of hearing notice.[11393439][Array,17-10448] (AW) [Entered: 08/11/2019 06:16 AM]
Filed (ECF) Acknowledgment of hearing notice by Attorney Mr. James I. Pearce for Appellee USA. Hearing in San Francisco on 10/23/2019 at 09:00 A.M. (Courtroom: Courtroom 2). Filer sharing argument time: No. (Argument minutes: 20.) Special accommodations: NO. Filer admission status: I certify that I am admitted to practice before this Court. Date of service: 08/13/2019. [11395182] [17-10448] (Pearce, James) [Entered: 08/13/2019 07:36 AM]
Filed (ECF) Acknowledgment of hearing notice by Attorney Mr. Christopher G. Caldwell for Appellee USA, Special Prosecutor. Hearing in San Francisco on 10/23/2019 at 09:00 A.M. (Courtroom: Courtroom 2). Filer sharing argument time: No. (Argument minutes: 20.) Special accommodations: NO. Filer admission status: I certify that I am admitted to practice before this Court. Date of service: 08/15/2019. [11398668] [1710448] (Caldwell, Christopher) [Entered: 08/15/2019 02:04 PM]
Filed (ECF) Acknowledgment of hearing notice by Attorney Mr. Larry E. Klayman, Esquire for Appellant Joseph M. Arpaio. Hearing in San Francisco on 10/23/2019 at 09:00 A.M. (Courtroom: Courtroom 2). Filer sharing argument time: No. (Argument minutes: 15.) Special accommodations: NO. Filer admission status: I certify that I am admitted to practice before this Court. Date of service: 08/15/2019. [11398711] [1710448] (Klayman, Larry) [Entered: 08/15/2019 02:19 PM]
Filed (ECF) Acknowledgment of hearing notice by Attorney Mr. John Wilenchik for Appellant Joseph M. Arpaio. Hearing in San Francisco on 10/23/2019 at 09:00 A.M. (Courtroom: Courtroom 2). Filer sharing argument time: No. (Argument minutes: 20.) Special accommodations: NO. Filer admission status: I certify

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that I am admitted to practice before this Court. Date of service: 08/15/2019. [11399013] [17-10448] (Wilenchik, John) [Entered: 08/15/2019 04:11 PM]
Filed (ECF) Appellee USA Motion for miscellaneous relief [Clarification regarding oral argument time]. Date of service: 08/18/2019. [11400966] [17-10448] (Pearce, James) [Entered: 08/18/2019 01:52 PM]
Terminated Appellee USA, Special Prosecutor in 17-10448 (Docket corrected to reflect Special Prosecutor is not a party to the appeal). [11418456] (HH) [Entered: 09/03/2019 11:24 AM]
Filed clerk order (Deputy Clerk: WL): Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar’s motion for leave to file brief as amicus curiae in support of denial of vacatur, filed December 21, 2017, is GRANTED. Certain Members of Congress’s motion for leave to file brief as amicus curiae in support of neither party, filed April 29, 2019, is GRANTED. Appellant’s motion for sanctions, filed May 14, 2019, is DENIED. Laurence H. Tribe, Martin H. Redish, Lawrence Friedman, William D. Rich, Citizens for Responsibility and Ethics in Washington, MoveOn, and Republicans for the Rule of Law’s motion to join The Protect Democracy Project, Inc., Free Speech for People, Coalition to Preserve, Protect and Defend, and the Roderick and Solange MacArthur Justice Center’s amicus curiae brief in support of the special counsel, filed April 29, 2019, is GRANTED. [11419151] (WL) [Entered: 09/03/2019 03:14 PM]
Filed (ECF) Appellee USA Motion for miscellaneous relief [Motion by Special Prosecutor for Clarification of Docket Entry Terminating Status]. Date of service: 09/10/2019. [11427437] [17-10448] (Caldwell, Christopher) [Entered: 09/10/2019 04:27 PM]
Notice of Oral Argument on Wednesday, October 23, 2019 - 09:00 A.M. - Courtroom 4 - San Francisco CA.

View the Oral Argument Calendar for your case here.

Be sure to review the GUIDELINES for important information about your hearing, including when to arrive (30 minutes before the hearing time) and when and how to submit additional citations (filing electronically as far in advance of the hearing as possible).

If you are the specific attorney or self-represented party who will be arguing, use the ACKNOWLEDGMENT OF HEARING NOTICE filing type in CM/ECF no later than 21 days before Wednesday, October 23, 2019. No form or other attachment is required. If you will not be arguing, do not file an acknowledgment of hearing notice.[11427575][Array,17-10448] (AW) [Entered: 09/10/2019 06:39 PM]

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Filed (ECF) Amici Curiae Laurence H. Tribe, Esquire, Martin H. Redish, Lawrence Friedman, William D. Rich, Citizens for Responsibility and Ethics in Washington, MoveOn, Protect Democracy Project, Inc. and Republicans for the Rule of Law Motion for miscellaneous relief [Motion by Amici Curiae to Participate in Oral Argument]. Date of service: 09/11/2019. [11427847] [17-10448] (Cabou, Jean-Jacques) [Entered: 09/11/2019 09:38 AM]

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Filed clerk order (Deputy Clerk: WL): Oral argument will be presented as follows: Defendant-Appellant Joseph M. Arpaio will have 20 minutes for oral argument. This includes any rebuttal he wishes to make. After Defendant-Appellant Joseph M. Arpaio’s opening argument, counsel from the U.S. Department of Justice will then have 10 minutes for oral argument. After the U.S. Department of Justice’s argument, Special Prosecutor Christopher G. Caldwell will then have 20 minutes for oral argument. Amici curiae Laurence H. Tribe, Martin H. Redish, Lawrence Friedman, William D. Rich, Citizens for Responsibility and Ethics in Washington, MoveOn, The Protect Democracy Project, Inc., and Republicans for the Rule of Law’s motion to participate in oral argument is DENIED. [11429937] (WL) [Entered: 09/12/2019 02:57 PM]

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Filed (ECF) Acknowledgment of hearing notice by Attorney Mr. Christopher G. Caldwell for Appellees USA and USA, Special Prosecutor. Hearing in San Francisco on 10/23/2019 at 09:00 A.M. (Courtroom: Courtroom 4). Filer sharing argument time: No. (Argument minutes: 20.) Special accommodations: NO. Filer admission status: I certify that I am admitted to practice before this Court. Date of service: 09/18/2019. [11436404] [17-10448] (Caldwell, Christopher) [Entered: 09/18/2019 04:14 PM]

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Terminated participation of Court Reporter Elizabeth A. Lemke in this case (no longer active). [11444523] [17-10448, 17-10451, 17-10465, 18-10076, 18-10220, 18-10469, 18-15212, 18-15845, 18-16109, 1816247, 18-16410, 18-16661, 18-17259] (ASW) [Entered: 09/26/2019 10:28 AM]

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Filed Non- Party Caraleen Lopshine EMERGENCY Form 16. Circuit Rule 27-3 c. Deficiencies: None. [11459244]--[COURT UPDATE: To attach exhibits; resent NDA - 10/09/2019 by HH]--[COURT UPDATE: The Court will take no action on this filing because the filer is not a party to the appeal. 02/21/2020 by SVG] (JFF) [Entered: 10/09/2019 11:31 AM]

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ARGUED AND SUBMITTED TO JAY S. BYBEE, N. RANDY SMITH and DANIEL PAUL COLLINS. [11474700] (WWP) [Entered: 10/23/2019 12:29 PM]

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Filed Audio recording of oral argument. Note: Video recordings of public argument calendars are available on the Court's website, at http://www.ca9.uscourts.gov/media/ [11475210] (BJK) [Entered: 10/23/2019 03:26 PM]

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FILED OPINION (JAY S. BYBEE, N. RANDY SMITH and DANIEL PAUL COLLINS) AFFIRMED. Judge: JSB Authoring. FILED AND ENTERED JUDGMENT. [11610566]--[Edited 03/03/2020 (attached updated PDF - counsel listing updated) by AKM] (AKM) [Entered: 02/27/2020 08:27 AM]
Filed (ECF) Appellant Joseph M. Arpaio Correspondence: NOTICE OF ERROR IN COURT'S OPINION OF FEBRUARY 27, 2020. Date of service: 02/27/2020 [11611899] [17-10448] (Klayman, Larry) [Entered: 02/27/2020 04:57 PM]
Filed order (JAY S. BYBEE, N. RANDY SMITH and DANIEL PAUL COLLINS): Counsel Larry Klayman’s request to be named in the published opinion as counsel for Defendant-Appellant Joseph Arpaio is GRANTED. [11616268] (AF) [Entered: 03/03/2020 10:42 AM]
MANDATE ISSUED.(JSB, NRS and DPC) [11636169] (JFF) [Entered: 03/20/2020 09:04 AM]

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 Case: 17-10448, 04/17/2018, ID: 10839081, DktEntry: 25, Page 1 of 15

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

No. 17-10448
D.C. No. 2:16-cr-01012-SRB-1

JOSEPH M. ARPAIO, Sheriff, Defendant-Appellant.

ORDER

Filed April 17, 2018
Before: A. Wallace Tashima, William A. Fletcher, and Richard C. Tallman, Circuit Judges.
Order; Dissent by Judge Tallman

Case: 17-10448, 04/17/2018, ID: 10839081, DktEntry: 25, Page 2 of 15

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UNITED STATES V. ARPAIO

SUMMARY*

Criminal Law
In an appeal from the district court’s denial of former Maricopa County Sheriff Joseph Arpaio’s request—following a Presidential pardon—for vacatur of his criminal-contempt conviction, a motions panel issued an order appointing a special prosecutor to defend the district court’s decision after the United States informed this Court that it does not intend to defend it.
The panel held that it has authority to appoint counsel under Fed. R. Crim. P. 42(a)(2); and that, independently, it has inherent authority to appoint a special counsel to represent a position abandoned by the United States on appeal.
Dissenting, Judge Tallman wrote that it is unwise for this Court to use its authority to appoint a private attorney at this late stage to “prosecute” the appeal of a case the Government already won, in the face of the Government’s continued willingness to participate, and to countenance a surreptitious use of the vacatur appeal to pursue an untimely attack on the President’s constitutional authority to pardon.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case: 17-10448, 04/17/2018, ID: 10839081, DktEntry: 25, Page 3 of 15

UNITED STATES V. ARPAIO

3

COUNSEL

John Wilenchik and Dennis I. Wilenchik, Wilenchik & Bartness P.C., Phoenix, Arizona; Mark D. Goldman, Goldman & Zwillinger PLLC, Scottsdale, Arizona; for Defendant-Appellant.

John D. Keller, Deputy Chief; James I. Pearce, Trial Attorney; United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.

ORDER
This case is on appeal from the district court’s denial of Defendant-Appellant’s request for vacatur of his conviction for criminal contempt. The validity of the district court’s denial will be addressed by the merits panel assigned to this case. We address only the question of whether to appoint a special prosecutor to defend the district court’s decision in light of the United States’ letter informing this Court that “[t]he government does not intend to defend the district court’s order.” For the reasons discussed below, we will appoint a special prosecutor to provide briefing and argument to the merits panel.
I. Background
Defendant-Appellant former Maricopa County Sheriff Joseph M. Arpaio (“Sheriff Arpaio”) was referred for criminal contempt on August 19, 2016. The United States prosecuted Sheriff Arpaio and obtained a conviction on July 31, 2017. On August 25, 2017, President Donald J. Trump

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UNITED STATES V. ARPAIO

pardoned Sheriff Arpaio, noting that Sheriff Arpaio’s sentencing was “set for October 5, 2017.”

On August 28, 2017, Sheriff Arpaio moved for two forms of relief. First, Sheriff Arpaio moved “to dismiss this matter with prejudice.” Second, Sheriff Arpaio asked the district court “to vacate the verdict and all other orders in this matter, as well as the Sentencing on October 5th.”

The district court granted Sheriff Arpaio’s first request. On October 4, 2017, the district court dismissed with prejudice the action for criminal contempt. No timely notice of appeal from the dismissal order was filed. We denied a late-filed request for the appointment of counsel to “crossappeal the District Court’s Order dismissing the charges.”

The district court denied Sheriff Arpaio’s second request. On October 19, 2017, the district court denied vacatur and refused to grant “relief beyond dismissal with prejudice.” That same day, Sheriff Arpaio filed a timely notice of appeal. In response to a request for the appointment of counsel to “defend the District Court’s Order denying Arpaio’s request for vacatur,” we ordered the United States to “file a statement indicating whether it intends to enter an appearance and file an answering brief in this appeal.”

The United States responded that it “does not intend to defend the district court’s order from October 19, 2017 . . . ; instead, the government intends to argue, as it did in the district court, that the motion to vacate should have been granted.” The United States took “no position on whether the Court should appoint counsel to make any additional arguments.”

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II. Discussion

Because the United States has abandoned any defense of the district court’s decision with respect to vacatur, the merits panel of our court that will decide this appeal will not receive the benefit of full briefing and argument unless we appoint a special prosecutor to defend the decision of the district court. For the reasons that follow, we will appoint a special prosecutor.

First, we conclude that we have the authority to appoint counsel under Federal Rule of Criminal Procedure 42, which prescribes procedures for dealing with criminal contempt. Rule 42(a)(2) provides:

Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

In Rule 42(a)(2)’s most common application, the district court appoints a special prosecutor to investigate and try a criminal contempt when the government declines to perform that function. See, e.g., Hollingsworth v. Perry, 570 U.S. 693, 725 (2013) (Kennedy, J., dissenting) (“Federal Rule of Criminal Procedure 42(a)(2) allows a court to appoint a private attorney to investigate and prosecute potential instances of criminal contempt.”).

But the operation of Rule 42(a)(2) is not confined to investigations and trials in the district court. A private

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attorney appointed under the rule has the authority to act as a special prosecutor not only in the district court but also in the court of appeals. See, e.g., Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 808–09 (1987) (invalidating the appointment of special prosecutor because he was an interested party, not because he prosecuted an appeal); United States v. Cutler, 58 F.3d 825, 827, 831–32 (2d Cir. 1995) (accepting without comment a special prosecutor’s briefing and argument in an appeal by a contemnor); Matter of Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir. 1986) (same). Our attention has not been directed to, nor have we found, a case in which a special prosecutor was appointed by a court of appeals after the government declined to oppose the contemnor’s arguments on appeal. However, we see no reason why such appointment should not take place under Rule 42(a)(2).

Second, independent of any authority under Rule 42(a)(2), we have inherent authority to appoint a special counsel to represent a position abandoned by the United States on appeal. “[I]t is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.” Young, 481 U.S. at 793. “The fact that we have come to regard criminal contempt as a crime in the ordinary sense does not mean that any prosecution of contempt must now be considered an execution of the criminal law in which only the Executive Branch may engage.” Id. at 799–800 (internal citations and quotation marks omitted).

The long-standing practice of the United States Supreme Court is to use its inherent authority to appoint disinterested

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UNITED STATES V. ARPAIO

7

counsel to represent the position taken by the United States below when the United States refuses to defend its prior position. See United States v. Brainer, 691 F.2d 691, 693 (4th Cir. 1982) (“When the government confesses error in the Supreme Court, and thus abandons a position taken in a lower court, the Court commonly appoints an amicus to assert the abandoned cause.”) (citing cases); Letter to Anton Metlitsky, Esq., Lucia v. SEC, No. 17-130 (U.S. Jan. 18, 2018) (inviting a private attorney “to brief and argue this case, as amicus curiae, in support of the judgment below”); Brief for the Respondent at 9–10, Lucia v. SEC, No. 17-130 (U.S. Nov. 29, 2017) (notifying the Court that the government would no longer defend the decision below and urging the Court to “appoint an amicus curiae” to do so).

The Supreme Court has relied on its inherent judicial power to appoint appellate counsel specifically in the context of contempt. In United States v. Providence Journal Co., 485 U.S. 693 (1988), the Court held that a special prosecutor appointed under Rule 42 needs the permission of the Solicitor General to litigate a contempt case in the Supreme Court. Id. at 699 n.5. The Court noted that the independence of the judiciary “might appear to be threatened” by this holding, especially in cases in which the contemnor was convicted by the district court, the Court of Appeals affirmed, and the Solicitor General refused to either defend the judgment below or authorize the special prosecutor to do so. Id. at 703–04. However, the Supreme Court explained that “[t]his threat . . . is inconsequential” because of the Court’s inherent authority to appoint an amicus to appear before the Court to defend the judgment below: “[I]t is well within this Court’s authority to appoint an amicus curiae to file briefs and present oral argument in support of that judgment.” Id. at 704.

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Conclusion

We will appoint special counsel and address all other pending motions by separate order.

SO ORDERED.

TALLMAN, Circuit Judge, dissenting:
Amici ask us to appoint a private attorney under Federal Rule of Criminal Procedure (“Rule”) 42(a)(2) to defend the district court’s Order denying Defendant/Appellant Joseph Arpaio’s request for vacatur of his criminal contempt conviction. Rule 42(a)(2) is not applicable here. Arpaio effectively conceded his guilt by accepting the pardon, and there is no need for more investigation, presentation of evidence, or further proceedings to determine if the equitable relief of vacatur is appropriate. The United States has told us it is not abdicating its responsibility to represent the Government’s interest in this appeal. Nor do amici attempt to hide the true purpose of their request—to challenge the underlying pardon. But the constitutionality of the President’s pardon is not at issue in Arpaio’s current appeal; the denial of Arpaio’s motion for vacatur of his conviction is. The request is inappropriate. My colleagues’ decision to appoint separate counsel now is therefore ill-advised and unnecessary. I respectfully dissent.
I
Following his pardon on August 25, 2017, Arpaio moved to dismiss his criminal contempt conviction with prejudice

Case: 17-10448, 04/17/2018, ID: 10839081, DktEntry: 25, Page 9 of 15

UNITED STATES V. ARPAIO

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and for vacatur of the record. On October 4, 2017, an able United States district judge found that the pardon was valid, dismissed the action for criminal contempt, entered that order on the public docket, and closed the case. The order also denied amici’s motion to appoint a Rule 42 attorney, but reserved ruling on Arpaio’s additional request for vacatur. After considering further briefing on whether to vacate, the district court denied the request for vacatur on October 19, 2017, and Arpaio timely appealed.

Amici initially wanted us to appoint a special prosecutor to both defend the October 19 vacatur order and file a notice of appeal from the district court’s earlier October 4 dismissal order. We denied amici’s motion in part, however, because under Federal Rule of Appellate Procedure 4(b)(1)(B)(ii), the time for filing an appeal to challenge the constitutionality of the pardon had run. Nov. 22 Order, Dkt. 9; see United States v. Wheeler, 952 F.2d 326, 327 (9th Cir. 1991) (“[A] district court’s order refusing to vacate an underlying contempt order is nonappealable when the ground on which vacatur is sought existed at the time the contempt order was entered and the contemnor failed to appeal timely from that order.”). In short, the basis for our November 22 Order was that amici were too late because they missed the deadline to raise a constitutional challenge to the earlier order.

We also asked the United States to state its intentions regarding Arpaio’s separate vacatur appeal. The Government responded that it had entered an appearance and “intends to represent the government’s interests in this appeal.” The Government explained that, instead of defending the district court’s October 19 order, it “intends to argue . . . that the motion to vacate should have been granted.” That ought to have been the end of the matter.

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UNITED STATES V. ARPAIO

But because the United States has chosen not to defend the vacatur order, amici now assert that the Government is declining to prosecute Arpaio’s criminal contempt conviction and that we are required to appoint special counsel. Regrettably, my colleagues in the majority agree. Sound judicial discretion instead counsels that we should deny the request and not appoint a special prosecutor at this late date in the case.

II

The request to appoint a private lawyer under Rule 42(a)(2), in place of the United States, is inappropriate now because it effectively gives interested parties an avenue to belatedly appeal the pardon’s effect on successful conviction, despite the Government’s continued participation.

A

The criminal contempt case was successfully prosecuted by the United States, which did not hesitate or decline to prosecute. No useful purpose would be served by appointing a new prosecutor now.

Rule 42(a)(2) was developed for a very different purpose than employed here. “Federal Rule of Criminal Procedure 42(a)(2) allows a court to appoint a private attorney to investigate and prosecute potential instances of criminal contempt.”1 Hollingsworth v. Perry, 133 S. Ct. 2652, 2673

1 Rule 42(a)(2) states in whole, “Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of

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(2013) (Kennedy, J., dissenting) (emphasis added). In recognizing the power of the judiciary to appoint special prosecutors, the Court stated in Young v. U.S. ex rel. Vuitton et Fils S.A. that “[t]he prosecutor is appointed solely to pursue the public interest in vindication of the court’s authority.” 481 U.S. 787, 804 (1987) (emphasis added). Accordingly, “[a] private attorney appointed to prosecute a criminal contempt therefore certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.”2 Id.

The need for special counsel is over. The United States secured a contempt conviction at trial and any affront to the court’s authority was vindicated. We have observed that a prosecutor, as part of the prosecutorial power to punish a putative contemnor, “can gather evidence and investigate matters more thoroughly than a court can at an evidentiary hearing alone. He or she can also serve to shorten the length of trial by culling through evidence and witnesses beforehand to determine which are relevant and credible.” F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1140 (9th Cir. 2001).

But these powers of prosecution do not¯and should not¯extend to tangential matters of end-of-case record-

another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.”
2 Amici do not appear disinterested. Given that the law firm serving as the primary signor for amici represented President Trump’s former political rival, Hillary Clinton, their possible opposing interests should at least preclude them from appointment as special counsel, as they requested. Young, 481 U.S. at 811 (“[A]ppointment of an interested prosecutor creates an appearance of impropriety that diminishes faith in the fairness of the criminal justice system in general.”).

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keeping or vacatur of the record of a successful conviction following a pardon. This is not why Rule 42(a)(2) exists. It exists to ensure the judiciary “has a means to vindicate its own authority without complete dependence on other Branches.” Young, 481 U.S. at 796. It also applies when the government is ineligible or otherwise declines to prosecute. See, e.g., F.T.C. v. Am. Nat. Cellular, 868 F.2d 315, 318–20 (9th Cir. 1989) (analyzing factors that contribute to a party’s ineligibility to prosecute criminal contempt charges); In re Special Proceedings, 373 F.3d 37, 43 (1st Cir. 2004) (holding that the appointment of a special prosecutor was appropriate where the government attorneys were the possible source of the leak of information underlying the criminal contempt prosecution).

Here, the district court’s authority was vindicated when Arpaio was convicted of criminal contempt. Its authority will not be usurped if that conviction is vacated in light of the pardon, or if the court of appeals ultimately affirms the district court’s refusal to annul it from the defendant’s record.

B

The Government has also never declined to prosecute this case. See Fed. R. Crim. P. 42(a)(2) (“If the government declines the request [to prosecute a contempt charge], the court must appoint another attorney to prosecute the contempt.”). It maintains that it continues to represent the public (and the Executive) interest in the vacatur proceedings. Amici, however, would have us believe that because the United States supports the vacatur, such action is tantamount to the Government declining to prosecute a criminal contempt conviction. But they cite no cases for the proposition that Rule 42 requires appointing a special prosecutor where, as

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here, the Government has already successfully obtained a conviction, but the President has pardoned the contemnor.

Nor does “the interest of justice” mandate that the Government be precluded from continuing to act as a prosecutor so the record of Arpaio’s conviction may be maintained. Fed. R. Crim. P. 42(a)(2). And because the pardon does not erase Arpaio’s guilt or expunge the fact of the judgment, there is no underlying affront to the court’s authority stemming from criminal contempt left to vindicate. See In re North, 62 F.3d 1434, 1437 (D.C. Cir. 1994) (“Because a pardon does not blot out guilt or expunge a judgment of conviction, one can conclude that a pardon does not blot out probable cause of guilt or expunge an indictment.”).

Even if some future merits panel subsequently reversed the district court’s vacatur order denying Arpaio’s request, the special prosecutor would still need the Solicitor General’s approval to file a petition for writ of certiorari to the United States Supreme Court. United States v. Providence Journal Co., 485 U.S. 693, 706–07 (1988). This seems highly unlikely given the Government’s current litigating position. Arpaio was convicted, pardoned, and all that remains is a matter of record-keeping as to the fact of his conviction.

Given the Government’s continued participation in this case, our appointment now of a special prosecutor to advance a litigating position different from that pursued by the United States Department of Justice makes it appear as though we are appointing another prosecutor because we have prejudged the case and disagree with the Government’s position. In light of this appearance of judicial bias, we should respect the Government’s position and remain impartial on the matter.

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See Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 150 (1968) (“[A]ny tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.”); Code of Conduct for United States Judges, 175 F.R.D. 363, 364–66 (1998).

C

More worrisome still is that amici seemingly want a special prosecutor appointed just to take another stab at attacking the pardon on constitutional grounds after they failed to timely appeal. See Amici Curiae’s Reply to Statement of the United States, Dkt. 13, at 1 (“[T]he need for a Rule 42 attorney is particularly acute in this case given the unprecedented nature of the Pardon and the novel and important constitutional issues it raises.”); Brief for Amici Curiae, Dkt. 5, at 1 (“[P]roposed amici have a profound interest in ensuring that the constitutionality of President Trump’s extraordinary pardon of Arpaio is reviewed by this Court.”); Motion for Leave for Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar to Participate as Amici Curiae, Dkt. 18, at 3–23 (proposed amici spend three pages addressing vacatur, and nineteen subsequent pages addressing the validity of the pardon).

The Supreme Court has already ruled that the President has the power to pardon criminal contempt convictions. Ex parte Grossman, 267 U.S. 87, 122 (1925). And we have already ruled that amici missed the deadline for arguing the merits of such an appeal. It’s time amici let go of that issue.

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III

It is an unwise use of our authority to appoint a private attorney at this late stage to (1) “prosecute” the appeal of a case the Government already won, (2) in the face of the Government’s continued willingness to participate, and (3) to countenance a surreptitious use of the vacatur appeal to pursue an untimely attack on the President’s constitutional authority to pardon. I fear the majority’s decision will be viewed as judicial imprimatur of the special prosecutor to make inappropriate, unrelated, and undoubtedly political attacks on Presidential authority. We should not be wading into that thicket.

Accordingly, I respectfully dissent.

 
 Case: 17-10448, 10/10/2018, ID: 11040129, DktEntry: 41, Page 1 of 27

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.

No. 17-10448
D.C. No. 2:16-cr-01012-SRB-1

JOSEPH M. ARPAIO, Sheriff, Defendant-Appellant.

ORDER

Filed October 10, 2018
Before: A. Wallace Tashima, William A. Fletcher, and Richard C. Tallman, Circuit Judges.
Order; Concurrence by Judge W. Fletcher;
Statement by Judge Tashima; Dissent by Judge Callahan; Statement by Judge Tallman

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SUMMARY*

Appointment of Special Counsel
A motions panel filed an order on behalf of the court denying rehearing en banc of the motions panel’s April 17, 2018 published order authorizing the appointment of a special prosecutor to provide briefing and argument to the merits panel that will hear former Sheriff Joe Arpaio’s appeal from the district court’s denial of his motion to vacate his conviction for criminal contempt of court.
Concurring in the denial of rehearing en banc, Judge W. Fletcher, joined by Judges Graber, Wardlaw, Gould, Paez, and Christen, wrote to emphasize the limited role of the special prosecutor and the legality of the order.
In a statement regarding the denial of rehearing en banc, Judge Tashima wrote that he agrees with and fully supports Judge W. Fletcher’s concurrence in the denial of rehearing en banc.
Dissenting from the denial of reconsideration en banc, Judge Callahan, joined by Judges Bybee, Bea, and Ikuta, wrote that the panel should have stuck to the tried and true solution of simply appointing amicus curiae to defend the district court’s vacatur ruling in this situation in which the Department of Justice agrees that the conviction should be vacated. She wrote that the appointment of the special prosecutor is ill-advised and unnecessary, constitutionally
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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infirm, and an unprecedented and unauthorized intrusion of executive power.

In a statement regarding the denial of rehearing en banc, Judge Tallman wrote that he agrees with the views expressed by Judge Callahan in her dissent from the denial of rehearing en banc.

ORDER
A judge of the court sua sponte called for a vote on whether to rehear en banc the published order in this case dated April 17, 2018. A vote was taken, and a majority of the non-recused active judges of the court failed to vote for en banc rehearing. Fed. R. App. P. 35(f). Rehearing en banc is DENIED.

W. FLETCHER, Circuit Judge, joined by GRABER, WARDLAW, GOULD, PAEZ, and CHRISTEN, Circuit Judges, concurring in the denial of rehearing en banc:
Former Sheriff Joe Arpaio has appealed to our court from the district court’s denial of a motion to vacate his conviction for criminal contempt of court. On April 17, 2018, a motions panel of our court issued an order authorizing the appointment of a “special prosecutor to provide briefing and argument to the merits panel” that will hear Arpaio’s appeal. United States v. Arpaio, 887 F.3d 979, 980 (9th Cir. 2018). The role of the “special prosecutor” under the order will be limited to providing briefing and argument to the merits panel.

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A member of our court unsuccessfully sought en banc rehearing and reversal of the order of the motions panel. Several judges now dissent from the decision of our full court not to rehear the matter en banc. I concur in the denial of en banc rehearing. I write to emphasize two things—the limited role of the special prosecutor, and the legality of the order.

I. Limited Role of the Special Prosecutor

Arpaio violated an order of the district court. The United States prosecuted Arpaio for criminal contempt of court and obtained a conviction on July 31, 2017. President Trump pardoned Arpaio on August 25, prior to sentencing by the district court. Arpaio then moved to dismiss the prosecution and to vacate the conviction. On October 19, 2017, the district court granted Arpaio’s motion to dismiss the prosecution but denied his motion to vacate the conviction. Arpaio appealed the denial.

On December 13, 2017, in response to an inquiry from our court, the government wrote that it “does not intend to defend the district court’s order from October 19, 2017 . . . ; instead, the government intends to argue, as it did in the district court, that the motion to vacate should have been granted.” United States Statement at 2. The government took “no position on whether the Court should appoint counsel to make any additional arguments.” Id. The motions panel then issued the order now at issue on April 17, 2018.

After the motions panel issued its order, the government objected to the appointment of a private attorney as a special prosecutor, reversing the position it had taken on December 13. The government wrote on June 22, 2018: “The prosecution of crimes is a prerogative of the Executive

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Branch, subject to a narrow exception for appointment of a special prosecutor in contempt actions that is codified in [Federal] Rule [of Criminal Procedure] 42. But the appointment of a special prosecutor under the circumstances of this case does not fit within that narrow exception, and thus would intrude into an area that is constitutionally reserved for the Executive.” United States Brief at 2.

The role of a private attorney appointed as a special prosecutor, either under Rule 42 or under the court’s inherent authority, is the same as the role of a federal prosecutor. The role of a federal prosecutor, and the corresponding role of a special prosecutor, is not limited to actions in the district court. The role of a federal prosecutor is to initiate a prosecution for contempt of court, to prosecute the case in the district court, and, if a conviction is obtained, to defend the conviction in the district court and the court of appeals.

In the case before us, the government was successful in obtaining a conviction for criminal contempt of court. The part of the prosecutor’s role that remains is defending on appeal that successful result. The motions panel authorized the appointment of a special prosecutor to perform that function—to present in briefing, and by oral argument if necessary, arguments in support of the district court’s denial of Arpaio’s motion to vacate his conviction.

II. Legality of the Order

The dissenters characterize the order of the motions panel as “constitutionally infirm” and as an “unprecedented—and unauthorized—intrusion of executive power.” Diss. Op. at 13. This is incorrect.

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The order of the motions panel was an exercise of judicial rather than executive power. The order authorizes the appointment of private counsel to assist the court in evaluating the merits of an appeal, in a criminal contempt-ofcourt case, after the government has declined to perform that function.

A. Rule 42

Federal Rule of Criminal Procedure 42 applies equally to all federal courts in which a government or special prosecutor would act—whether seeking and obtaining in district court a conviction for criminal contempt, or defending in an appellate court a conviction obtained in the district court. Federal Rule of Criminal Procedure 1, provides:

These rules govern the procedure in all criminal proceedings in the United States district courts, the United States courts of appeals, and the Supreme Court of the United States.

FED. R. CRIM. P. 1(a)(1).

Federal Rule of Criminal Procedure 42(a)(2) authorizes the appointment of a private attorney to prosecute criminal contempt of court when the government declines that role. It provides:

Appointing a Prosecutor: The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines

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the request, the court must appoint another attorney to prosecute the contempt.

FED. R. CRIM. P. 42(a)(2) (second emphasis added).

Rule 42(a)(2) is not itself the source of a federal court’s authority to appoint a private attorney as a special prosecutor to perform the role of a government attorney in prosecuting a criminal contempt of court. Rather, it is an implementation of a court’s pre-existing inherent authority to appoint a special prosecutor when the government declines to prosecute.

An earlier version of Rule 42 did not explicitly authorize the appointment of a private attorney as a special prosecutor to prosecute criminal contempt of court. The earlier Rule provided only that notice be given to an alleged contemnor that a government or private attorney had been appointed to prosecute the contempt. In Young v. United States ex rel. Vuitton, 481 U.S. 787, 793 (1987), the Second Circuit had upheld a district court order appointing two private attorneys as “special prosecutors” to prosecute a criminal contempt of court. The Supreme Court struck down the appointment on the ground that the two special prosecutors were not disinterested, given that they represented one of the parties in the underlying civil case. But the Court wrote at length to uphold the right of the court to appoint a disinterested private attorney as a special prosecutor.

The Court acknowledged that Rule 42, as then written, did not explicitly authorize a court to appoint private attorneys as special prosecutors. But it held that courts have pre-existing inherent authority to make such appointments.

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While it is true that Federal Rule of Criminal Procedure 42(b) does not provide authorization for the appointment of a private attorney, it is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.

Id. (emphases added).

Rule 42 was amended in 2002 to add what is now Rule 42(a)(2). The Committee Notes cite Young and explain the rationale for the amendment:

Revised Rule 42(a)(2) now explicitly addresses the appointment of a “prosecutor” and adopts language to reflect the holding in Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987). In that case the Supreme Court indicated that ordinarily the court should request that an attorney for the government prosecute the contempt; only if that request is denied, should the court appoint a private prosecutor. The rule envisions that a disinterested counsel should be appointed to prosecute the contempt.

FED. R. CRIM. P. 42 Advisory Committee Notes to 2002 amendment.

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B. Inherent Power

Rule 42 is rooted in the longstanding inherent power of the judiciary to appoint disinterested private attorneys as special prosecutors to pursue criminal contempt proceedings in federal court when government prosecutors are unwilling or unable to perform that function. The Court in Young made clear that Rule 42 is rooted in an inherent judicial power that exists independently of the Rule. Ordinary criminal prosecutions are, of course, exercises of the executive power. Prosecutions for criminal contempt of court are different. Such prosecutions are vindications of the judicial power, and the use of private attorneys as special prosecutors is part of the judicial function. The Court wrote in Young:

The Rule’s assumption that private attorneys may be used to prosecute contempt actions reflects the longstanding acknowledgment that the initiation of contempt proceedings to punish disobedience to court orders is a part of the judicial function.

Young, 481 U.S. at 795 (emphasis added).

In the case before us, a government prosecutor sought and obtained a conviction for criminal contempt in the district court. The government then declined to defend the conviction when Arpaio appealed the district court’s denial of his motion for vacatur. The Court in Young instructs us what to do in that circumstance:

If the Judiciary were completely dependent on the Executive Branch to redress direct affronts to its authority, it would be powerless to

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protect itself if that Branch declined prosecution. The logic of this rationale is that a court ordinarily should first request the appropriate prosecuting authority to prosecute contempt actions, and should appoint a private prosecutor only if that request is denied. Such a procedure ensures that the court will exercise its inherent power of self-protection only as a last resort.

Id. at 801.

Our court followed the procedure prescribed in Young. We inquired whether the government would defend Arpaio’s conviction on appeal. When the government responded that it did not intend to do so, the motions panel issued an order authorizing the appointment of a special prosecutor to perform the prosecutorial functions that the government had declined to perform. Such an appointment, as the Court’s opinion in Young makes clear, is “part of the judicial function,” enabling the judiciary “to protect itself if [the Executive] Branch decline[s] prosecution.” Id. at 795, 801.

III. Our Dissenting Colleagues’ View

Our dissenting colleagues have a much narrower view of Rule 42 and the judiciary’s inherent power. They concede, as they must, that the judicial branch has the authority under Rule 42 and its inherent power to “protect itself” if the executive branch declines to provide that protection. They also concede, as they must, that a court’s authority under Rule 42 and its inherent power extends to the appointment of private attorneys as special prosecutors to initiate proceedings for criminal contempt of court.

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However, our colleagues contend that a court’s authority ends as soon as criminal contempt-of-court proceedings are “initiated.” Diss. Op. at 17–18. They write, “Once a contempt proceeding begins, the court’s authority is vindicated and the court has no further stake in the matter.” Id. This cannot be right. Mere “initiation” of a criminal contempt proceeding is hardly sufficient to protect the integrity of the court. Actual prosecution of that contempt, once initiated, is necessary. Defense of a conviction on appeal is also necessary. That is, all of the normal functions of a prosecutor are necessary if the judiciary is fully to “protect itself” when the executive branch declines to provide that protection.

* * *

The order of the motions panel authorized the appointment of a special prosecutor under Rule 42 and its inherent power. During the pendency of Arpaio’s appeal to our court, the special prosecutor will continue the prosecution for criminal contempt of court that the government has abandoned.

Once the government declined to continue the prosecution by defending Arpaio’s conviction on appeal, the motions panel had no choice. Rule 42 specifies that if the government declines to prosecute, “the court must appoint another attorney to prosecute the contempt.” FED. R. CRIM. P. 42(a)(2) (emphasis added). As the Supreme Court wrote in Young:

If the Judiciary were completely dependent on the Executive Branch to redress direct affronts to its authority, it would be powerless to

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protect itself if that Branch declined prosecution.

481 U.S. at 801.

TASHIMA, Senior Circuit Judge, statement regarding denial of rehearing en banc:
I agree with and fully support Judge Fletcher’s concurrence in the denial of rehearing en banc.

CALLAHAN, Circuit Judge, with whom BYBEE, BEA, and IKUTA, Circuit Judges, join, dissenting from denial of reconsideration en banc:
The question before the motions panel was a simple one: Given that the Unites States Department of Justice agrees with the appellant, Sheriff Arpaio, on the legal point that Arpaio’s contempt conviction should be vacated, what should the court do to ensure the merits panel receives briefing and argument on both sides of the issue? The tried and true solution is to appoint amicus curiae to provide such briefing. The panel majority, unsatisfied with having already appointed amici curiae who have ably briefed the merits, took the unprecedented step of appointing a “special prosecutor” to supplant the Department of Justice.
We should have reconsidered the majority’s decision en banc. As Judge Tallman states in his dissent, the appointment of a special prosecutor is “ill-advised and unnecessary.”

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The appointment is also constitutionally infirm. The majority’s we-see-no-reason-why-not approach does not justify its admittedly unprecedented—and unauthorized— intrusion of executive power.

I

Judge G. Murray Snow (D. Ariz.) issued an order of charges for criminal contempt against former Maricopa County Sheriff Joseph M. Arpaio (and others), and requested that the United States Attorney’s office prosecute Sheriff Arpaio. The government accepted the request, and the Public Integrity Section of the United States Department of Justice successfully prosecuted Sheriff Arpaio in a bench trial conducted by Judge Susan R. Bolton, obtaining a conviction of criminal contempt on July 31, 2017. Before sentencing, however, President Donald Trump pardoned Arpaio. Rather than challenge the conviction, the sheriff accepted the pardon. He then moved to dismiss the action and to vacate the conviction and all other orders in the case. The district court granted the first request but denied the second. Arpaio appeals from the denial of the motion to vacate.1

Non-parties who served as amici curiae in the district court proceedings filed a motion requesting permission to

1 Sheriff Arpaio’s appeal is limited to the question of whether, in light of the pardon, the district court should have vacated the conviction. No one appealed the order dismissing the action. Our court denied a late-filed request for the appointment of counsel to cross-appeal the dismissal on behalf of the government because the time to appeal had expired.

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participate as amici curiae in the appeal.2 The motion also asked the court “to appoint a private attorney” under Federal Rule of Criminal Procedure 42 to defend the denial of the request for vacatur “to ensure that this Court has the full set of issues in this matter before it in an adversarial proceeding.” The court granted the motion in part, directed that the Clerk file amici curiae’s proposed merits brief, which defends the district court’s decision, and allowed amici to file a supplemental merits brief.3

The motions panel also ordered the government to “file a statement indicating whether it intends to enter an appearance and file an answering brief in this appeal.” The order further stated that if the government intended not to defend the district court’s order denying the motion to vacate, the government “shall also provide its position on whether this court should appoint counsel to represent the government’s interests on appeal and defend the district court’s order.” The order did not indicate that the panel was considering replacing the government with a “special prosecutor.”

The government responded that it “intends to represent the government’s interests in this appeal.” The government further stated that it “does not intend to defend the district

2 These amici include The Protect Democracy Project, Inc. (which is represented by Perkins Coie LLP and Messing & Spector LLP), Free Speech for People, The Coalition to Preserve, Protect and Defend, and the Roderick and Solange MacArthur Justice Center (Northwestern Pritzker School of Law).
3 Other non-parties, Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar (who are represented by Riordan & Horgan), have also sought leave to file a brief as amici curiae and submitted a proposed brief defending the district court’s denial of the request for vacatur.

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court’s order from October 19, 2017 . . . ; instead, the government intends to argue, as it did in the district court, that the motion to vacate should have been granted. We take no position on whether the Court should appoint counsel to make any additional arguments.”

On April 17, 2018, over a dissent by Judge Tallman, the motions panel issued its published order stating it “will appoint a special prosecutor.” United States v. Arpaio, 887 F.3d 979, 980 (9th Cir. 2018). The panel acknowledged the lack of any precedent for the court appointing a special prosecutor in a proceeding with a similar posture. Id. at 981–82. The panel justified its unprecedented action by stating, “[w]e see no reason why such appointment should not take place under Rule 42(a)(2).” Id. at 982.

The parties were then ordered to file supplemental briefs on “whether the Court has the authority, either pursuant to Fed. R. Crim. P. 42(a)(2) or under its inherent authority, to appoint a special prosecutor under the circumstances presented by this case.” United States v. Arpaio, 891 F.3d 1130, 1130–31 (9th Cir. 2018). The parties and amici filed supplemental briefs. The Department of Justice made clear in its brief that it has no intent to cede its role as the prosecutor who brought this action to a replacement special prosecutor. The government argued that the court lacks the power to appoint a special prosecutor, as opposed to amicus counsel, at this stage of the proceedings.

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II

A

A court’s authority to appoint a “special prosecutor” is extremely limited. Such an exercise of executive-like power is authorized only when necessary to vindicate the court’s own authority. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793–96, 800–01 (1987).

“The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787.” Buckley v. Valeo, 424 U.S. 1, 124 (1976). “Each branch ‘exercise[s] . . . the powers appropriate to its own department,’ and no branch can ‘encroach upon the powers confided to the others.’” Patchak v. Zinke, 138 S. Ct. 897, 904–05 (2018) (alterations in original). The Supreme Court has cautioned that each branch—including the judiciary—must “resist[]” the inherent pressure “to exceed the outer limits of its power, even to accomplish desirable objectives.” I.N.S. v. Chadha, 462 U.S. 919, 951 (1983).

The judicial branch cannot take, or be given by another branch, “executive . . . duties of a nonjudicial nature” where such duties are not provided for in the Constitution. See Buckley, 424 U.S. at 123. “The purpose of this limitation is to help ensure the independence of the Judicial Branch and to prevent the Judiciary from encroaching into areas reserved for the other branches.” Morrison v. Olson, 487 U.S. 654, 677–78 (1988). The Supreme Court commands “vigilance” against the “danger[]” of the judicial branch being “allowed ‘tasks that are more properly accomplished by [other]

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branches.’” Mistretta v. United States, 488 U.S. 361, 383 (1989) (quoting Morrison, 487 U.S. at 680–81).

Although the Constitution squarely endows the executive branch with the prosecutorial power, the Supreme Court has recognized a limited judicial power to appoint a special prosecutor to initiate criminal contempt proceedings. See Young, 481 U.S. at 800–01. This inherent power is justified by the judiciary’s need “to vindicate its own authority without complete dependence on other Branches.” Id. at 796. But that doesn’t give courts carte blanche to exercise control over this executive function whenever they “see no reason why” not. See Arpaio, 887 F.3d at 982. Rather, “[t]he need to vindicate a court’s authority is . . . satisfied by ensuring that an alleged contemner will have to account for his or her behavior in a legal proceeding, regardless of whether the party is ultimately convicted or acquitted.” Young, 481 U.S. at 796 n.8.

In other words, the need for the judiciary’s limited quasiexecutive power—and thus the power itself—is extinguished once criminal contempt proceedings are initiated. The Supreme Court repeated several times in Young that the power of appointment is limited to the “initiation” of contempt proceedings. See, e.g., Young, 481 U.S. at 793 (“[C]ourts possess inherent authority to initiate contempt proceedings for disobedience to their orders.” (emphasis added)); id. at 795 (“[T]he initiation of contempt proceedings to punish disobedience to court orders is a part of the judicial function.” (emphasis added)); id. at 796 (“Courts cannot be at the mercy of another Branch in deciding whether such proceedings should be initiated.” (emphasis added)); id. at 800–01 (“[C]ourts have long had . . . the authority to appoint private attorneys to initiate such proceedings.” (emphasis

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added)); id. at 801 (“[A] court has the authority to initiate a prosecution for criminal contempt.” (emphasis added)). Once a contempt proceeding begins, the court’s authority is vindicated and the court has no further stake in the matter. See id. at 796 n.8 (“A court’s ability to institute a contempt proceeding is therefore essential to the vindication of its authority in a way that the ability to determine guilt or innocence is not.”).4

Additionally, although “a court has the authority to initiate a prosecution for criminal contempt, its exercise of that authority must be restrained by the principle that ‘only “[t]he least possible power adequate to the end proposed” should be used in contempt cases.’” Id. at 801 (quoting United States v. Wilson, 421 U.S. 309, 319 (1975)) (alteration in original). “This principle of restraint in contempt counsels caution in the exercise of the power to appoint a private prosecutor.” Id. Such power exists “only as a last resort,” which means only if the court first asks the appropriate prosecuting authority to initiate contempt proceedings and that request is declined. Id.

B

The majority reaches two conclusions in support of its decision to “appoint a special prosecutor.” First, while acknowledging there is no precedent for expansion of the

4 Even if a court’s power to appoint a prosecutor is not extinguished upon the initiation of criminal proceedings, such power certainly does not survive past an unappealed conviction. In this regard, the posture of this case is significant. Rather than challenge his conviction, Arpaio chose to accept the Presidential pardon. The district court then properly dismissed the case in light of the pardon. Arpaio does not appeal his conviction; he appeals only the district court’s refusal to vacate its determination of guilt.

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power to appoint a special prosecutor to the situation here, the majority nonetheless concludes that it “ha[s] the authority to appoint counsel under Federal Rule of Criminal Procedure 42.” Arpaio, 887 F.3d at 981. Second, the panel concludes it “ha[s] inherent authority to appoint special counsel.” Id. at 982. Neither conclusion withstands scrutiny.

The majority’s assertion that Rule 42 empowers federal judges to appoint a special prosecutor is simply wrong. The Supreme Court stated in Young that Rule 42 “does not provide authorization for the appointment of a private attorney.” Young, 481 U.S. at 793; see id. at 794 (observing that Rule 42 “does not itself purport to serve as authorization for” the practice of appointing a special prosecutor). Rather, such limited authority is inherent in the constitutional grant of power to the judiciary, and Rule 42 merely refers to that authority and “speaks only to the procedure for providing notice of criminal contempt.” Id. at 793 (emphasis omitted). The Federal Rules of Criminal Procedure, as promulgated by the Supreme Court under the Rules Enabling Act, could no more grant Article III judges the power to appoint a prosecutor to initiate criminal proceedings than the judicial branch or legislative branch could unilaterally usurp some purely executive function.

The only explanations offered for the majority’s asserted power to appoint a special prosecutor is that the majority “see[s] no reason why such an appointment should not take place under Rule 42” and that the “operation” of Rule 42 “is not confined to investigations and trials in the district court.”

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Id. at 981–82.5 In seeing no reason to doubt its authority to appoint a special prosecutor, the majority overlooks constitutional constraints on the court’s power.

Curiously, the majority seeks to justify the appointment of a special prosecutor by relying on the “longstanding practice” of appointing a disinterested party to serve as amicus curiae to defend a lower court’s decision when the United States declines to defend the decision.6 Arpaio, 887 F.3d at 982. To state the obvious: appointment of a special prosecutor as contemplated by Rule 42 is not the same thing as appointment of appellate counsel or amicus curiae simply to brief and argue a case on appeal. A “special prosecutor” is “[a] lawyer appointed to investigate and, if justified, seek indictments in a particular case.” Prosecutor, Black’s Law Dictionary (10th ed. 2014). In contrast, “amicus curiae” is “[s]omeone who is not a party to a lawsuit but who

5 In asserting that the “operation” of Rule 42 is not confined to activities in the district court, the panel fails to recognize the distinction between a special prosecutor’s powers once appointed (which can continue into an appeal) and the court’s power to appoint a special prosecutor in the first instance on appeal. The majority cites no authority stating that the judiciary’s power to appoint a special prosecutor is coterminous with the hypothetical duration of the special prosecutor’s power once appointed. Indeed, such a view is contrary to the Young Court’s narrow construction of the judiciary’s power.
6 Amici’s attempt to defend the majority’s decision suffers from the same defect. Tellingly, in their brief on the en banc question, amici painstakingly avoid using the term “special prosecutor” other than when quoting the panel’s order and reciting Young’s holding that “courts possess inherent authority to initiate contempt proceedings.” Instead, like the panel, they seek to justify the order by asserting the undisputed proposition that courts have the power to appoint amicus or appellate counsel to defend a lower court’s judgment.

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petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter.” Amicus Curiae, Black’s Law Dictionary (10th ed. 2014). As the Department of Justice notes, “[t]he distinction is important because, by its nature, counsel appointed as amicus would be limited to defending the judgment and could not claim any of the powers associated with a special prosecutor.”7

Despite the clear distinction between a “special prosecutor” on the one hand and “appellate counsel,” “counsel,” or “amicus curiae” on the other hand, the majority uses these distinct labels throughout its order as if they were

7 A special prosecutor’s powers are broad. A special prosecutor appointed by the Attorney General under the former Ethics in Government Act, and the regulations that replaced that Act when it expired in 1999, is bestowed with “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” 28 C.F.R. § 600.6; see also 28 U.S.C. § 594(a) (providing that a special prosecutor’s powers include “conducting proceedings before grand juries and other investigations,” “making applications to any Federal court . . . for warrants, subpoenas, or other court orders,” and “initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any cases, in the name of the United States”). A special prosecutor appointed under Rule 42 to prosecute contempt necessarily has the same, or at least similar, prosecutorial powers. And just as we have no ability to expand or to restrict the United States Attorney’s prosecutorial powers, we are powerless to exercise control over the prosecutorial function of a special prosecutor appointed to represent the government. Here, of course, the movants wish the special prosecutor to take a position in litigation that the district court properly denied Arpaio’s motion to vacate the fact of his conviction. That is directly opposite to the position taken by the United States. The panel does not tell us who will resolve such conflicts between the special prosecutor and the United States Department of Justice.

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interchangeable.8 The majority’s citation to Lucia v. SEC, 138 S. Ct. 923 (2018), is ironic. See Arpaio, 887 F.3d at 982. In that case, the Supreme Court invited a particular attorney “to brief and argue this case, as amicus curiae, in support of the judgment below.” Lucia, 138 S. Ct. 923. Like in Lucia, the panel’s prior appointment of amici is all that is needed here. Yet the majority eschews the Supreme Court’s approach, instead somehow finding in Lucia’s singlesentence appointment of amicus curiae support for the appointment of a special prosecutor to displace the Department of Justice.

The majority’s conflation of the routine appointment of amici with the extraordinary act of appointing a special prosecutor not only violates the separation of powers, but is also sloppy, creates bad law, and invites reversal by the Supreme Court.

C

The appointment of a special prosecutor is completely unnecessary.

First, the United States did not decline the district court’s request to prosecute Sheriff Arpaio for contempt. The district court’s authority was vindicated when the government initiated contempt proceedings. Although the district court

8 See Arpaio, 887 F.3d at 981 (“we will appoint a special prosecutor”); id. (“unless we appoint a special prosecutor”); id. (“we have the authority to appoint counsel under [Rule 42”]); id. at 982 (“we have inherent authority to appoint a special counsel”); id. (“inherent authority to appoint disinterested counsel”); id. (“inherent judicial power to appoint appellate counsel”); id. (“inherent authority to appoint an amicus”).

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had no stake in the outcome of those proceedings, the result was in fact a conviction.

Second, the majority’s sole stated purpose in the appointment—to allow the merits panel the benefit of full briefing and argument—does not require or justify the appointment of a special prosecutor. The court’s only interest in this litigation is to have the issues raised on appeal fully briefed and argued, and that purpose is achieved by the court exercising its undisputed authority to appoint amicus curiae. Accordingly, even if the government’s position that the district court is in error would otherwise result in uneven briefing, the easy solution is the non-controversial appointment of amici to brief the issues.9

Indeed, the majority’s assertion that the merits panel “will not receive the benefit of full briefing and argument” absent appointment of a special prosecutor is perplexing in light of the panel’s prior order granting various groups leave to serve as amici and directing that the Clerk file amici’s proposed brief. Given the obvious option of appointing amicus curiae, perhaps even more perplexing is our concurring colleagues’

9 Confession of error by the government does not relieve the court “of the performance of the judicial function.” Sibron v. New York, 392 U.S. 40, 58 (1968); Young v. United States, 315 U.S. 257, 258–59 (1942) (“[O]ur judicial obligations compel us to examine independently the errors confessed.”). As stated in the Fourth Circuit case cited by the majority, “the Court commonly appoints an amicus”—not a special prosecutor—when the government confesses error in the lower court’s judgment. See Arpaio, 887 F.3d at 982 (quoting United States v. Brainer, 691 F.3d 691, 693 (4th Cir. 1982)).

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suggestion that the motions panel had “no choice” but to appoint a special prosecutor. Conc. Op. at 11.10

A cursory review of amici’s merits brief (prepared by highly esteemed counsel) confirms that amici vigorously defend the district court’s decision. Amici will also be able to respond to the appellant’s opening brief because the panel expressly authorized them to “file a supplemental brief addressing the merits of this appeal.” Additional proposed amici have filed a separate proposed merits brief that likewise heartily defends the district court.

Even though the court has received merits briefs on both sides of the only issue in this appeal, the panel majority maintains that it is compelled to appoint a special prosecutor to supplant the DOJ. Will the merits panel’s consideration of the issue somehow be limited because amici do not have prosecutorial powers in presenting the case for affirmance? No. Will the merits panel’s decision regarding vacatur somehow be devoid of effect if rendered without the presence of a “special prosecutor” in the case? No. On top of our unflagging duty to follow the law in deciding the appeal on its merits (as in all cases), do we have some additional interest in arriving at a particular result or seeing to the punishment of Arpaio? Of course not.

10 The concurrence makes this assertion without even attempting to explain why the appointment of amicus curiae is inadequate to serve the majority’s sole purpose of “provid[ing] briefing and argument to the merits panel.” Arpaio, 887 F.3d at 980. We appoint amici all the time to “assist the court in evaluating the merits of an appeal.” See Conc. Op. at 6.

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Nothing about our court resolving this case based on the briefing of the parties and amici either threatens to render the district court that issued the injunction against Arpaio impotent or undermines that court’s power in any way. The merits panel’s ultimate resolution of the sole issue in this case simply does not implicate the judiciary’s interest in ensuring that disobedience of contempt orders is punished.

D

If simply appointing amici to present a brief and argument would have done the trick, why encroach (or even risk encroaching) on the executive branch’s prerogative by appointing a special prosecutor?

It is now the law of this circuit—which covers nearly 20% of the nation’s population—that a judge may, in the name of getting “full briefing,” appoint a special prosecutor to replace the United States Department of Justice provided the judge “see[s] no reason why” not. Arpaio, 887 F.3d at 982. And the judge may do this even though the federal prosecutor initiates the criminal action, obtains a conviction, and fully intends to represent the government’s interests throughout the proceedings. Under the majority’s rationale, a judge could appoint a special prosecutor when he or she simply disagrees with the prosecution strategy or litigation position and thus declares that the United States has abandoned the case.

The combination of the majority’s holding being unprecedented and so obviously unnecessary to the panel’s stated purpose (i.e., to brief the merits of the appeal) will serve only to undermine public confidence in the merits panel’s ultimate decision—whatever it decides. And it isn’t difficult to anticipate the mischief that is sure to result from

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such an unreasoned application of the judiciary’s power to appoint a special prosecutor. Justice Scalia offered a prophetic warning in his concurring opinion in Young:

In light of the broad sweep of modern judicial decrees, which have the binding effect of laws for those to whom they apply, the notion of judges’ in effect making the laws, prosecuting their violation, and sitting in judgment of those prosecutions, summons forth much more vividly than [the Supreme Court in Anderson v. Dunn, 6 Wheat. 204 (1821)] could ever have imagined the prospect of “the most tyrannical licentiousness.”

Young, 481 U.S. at 822 (Scalia, J., concurring) (quoting Anderson, 6 Wheat. at 228). Perhaps Justice Scalia was right all along that “federal courts have no power to prosecute contemners for disobedience of court judgments, and no derivate power to appoint an attorney to conduct contempt prosecutions.” Id. at 825 (Scalia, J., concurring).

While Sheriff Arpaio and the Chief Executive who pardoned him have evoked strong feelings from those with opposing political views, we abandon our role as impartial jurists by “wading into that [political] thicket,” effectively firing the United States’ attorneys, and appointing a special prosecutor in their stead. See Arpaio, 887 F.3d at 986 (Tallman, J., dissenting).

III

The executive branch’s role is to prosecute. Our role is to adjudicate. When we close our eyes to the constitutional

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UNITED STATES V. ARPAIO

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limits of our power, we are bound to veer out of our lane, and there’s no telling what else we might do simply because “we see no reason why” not. The prosecutors here intend to do their job—we should let them and worry about doing our own job.

The panel should have stuck to the tried and true solution of simply appointing amicus curiae to defend the district court’s vacatur ruling. The prior appointment of amici is more than adequate to achieve the panel’s sole stated purpose of getting briefing and argument for the merits panel. And, unlike the appointment of a special prosecutor, such an appointment doesn’t run afoul of the Constitution’s separation of powers.

I respectfully dissent from the denial of reconsideration en banc.

TALLMAN, Senior Circuit Judge, statement regarding denial of rehearing en banc:
I agree with the views expressed by Judge Callahan in her dissent from the denial of rehearing en banc.

 
 Case 2:16-cr-01012-SRB Document 256 Filed 11/01/17 Page 1 of 8

1 Jean-Jacques Cabou (Bar No. 022835)

Shane R. Swindle (Bar No. 011738)

2 Katherine E. May (Bar No. 032335)

PERKINS COIE LLP

3 2901 North Central Avenue, Suite 2000

Phoenix, Arizona 85012-2788

4 Telephone: 602.351.8000

Email: JCabou@perkinscoie.com

5

SSwindle@perkinscoie.com

KMay@perkinscoie.com

6

DocketPHX@perkinscoie.com

7 Ian Bassin* Justin Florence*
8 THE PROTECT DEMOCRACY PROJECT, INC. 2020 Pennsylvania Avenue NW, #163
9 Washington, DC 20006 Telephone: 202.831.2837
10 Email: Ian.Bassin@protectdemocracy.org Justin.Florence@protectdemoncracy.org
11 Noah Messing*
12 MESSING & SPECTOR LLP 333 E. 43rd Street, Suite 1
13 New York, New York 10017 Telephone: 212.960.3720
14 Email: nm@messingspector.com

15 Phil Spector* MESSING & SPECTOR LLP
16 1200 Steuart Street, # 2112 Baltimore, Maryland 21230
17 Telephone: 202.277.8173 Email: ps@messingspector.com
18 Attorneys for The Protect Democracy Project, Inc.
19 (Additional counsel listed on following page)
20 UNITED STATES DISTRICT COURT
21 DISTRICT OF ARIZONA
22

23 United States of America,

No. CR-16-01012-001-PHX-SRB

24

25

v.

Plaintiff,

26 Joseph M. Arpaio,

27

Defendant.

[PROPOSED] BRIEF OF AMICI CURIAE IN SUPPORT OF APPOINTMENT OF RULE 42 ATTORNEY TO PROSECUTE APPEAL

28

Case 2:16-cr-01012-SRB Document 256 Filed 11/01/17 Page 2 of 8

1 Locke E. Bowman* (IL Bar No. 6184129)
2 David M. Shapiro* (IL Bar No. 6287364)
3 RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER
4 Northwestern Pritzker School of Law 375 East Chicago Avenue
5 Chicago, Illinois 60611 Telephone: 312.503.0711
6 locke.bowman@law.northwestern.edu david.shapiro@law.northwestern.edu
7 Attorneys for Roderick and Solange
8 MacArthur Justice Center
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Ronald Fein* (MA Bar No. 657930) Shanna M. Cleveland* (MA Bar No. 647795) FREE SPEECH FOR PEOPLE 1340 Centre St. #209 Newton, MA 02459 Telephone: 617.244.0234 rfein@freespeechforpeople.org scleveland@freespeechforpeople.org
Dennis Aftergut* (CA Bar No. 75656) Louise H. Renne* (CA Bar No. 36508) COALITION TO PRESERVE, PROTECT, AND DEFEND 350 Sansome Street, Suite 00 San Francisco, CA 94104 dal.cppd@gmail.com lrenne@publiclawgroup.com
Attorneys for Free Speech for People and Coalition to Preserve, Protect and Defend

- ii -

Case 2:16-cr-01012-SRB Document 256 Filed 11/01/17 Page 3 of 8

1 I. INTRODUCTION AND BACKGROUND

2

During the October 4, 2017, hearing on Defendant’s Vacatur Motion, this Court

3 concluded that it was “bound by the Supreme Court’s decision in Grossman that a

4 criminal contempt of a court order is an offense against the United States.” [Transcript of

5 10/4/17 Motion Hearing (“Hrg. Tr.”), at 5:6-8] The Court agreed with Amici that “the

6 criminal contempt pardoned here is for a willful violation of a preliminary injunction that

7 affected constitutional rights, a more significant issue than the willful violation of the

8 injunction against selling alcohol in In re Grossman.” [Id. at 6:11-15] While the Court

9 recognized this potential basis for distinguishing Grossman, the Court concluded that it

10 was nonetheless bound by that decision. The Court therefore found the Pardon valid, and

11 held that the Pardon required this action for criminal contempt be dismissed with

12 prejudice. [Id. at 6:19-20; see also Doc. 243 at 1]

13

While Amici respectfully disagree with the Court’s conclusions, they do not ask the

14 Court to revisit its decisions. Amici understand that the Court had before it the benefit of

15 briefing on the issue, and that the Court determined that it was bound by appellate

16 precedent—albeit precedent that it agreed can be distinguished from this case. Amici

17 submit this short supplemental brief to ask that the Court take a modest action to provide

18 for appellate consideration of this issue, by appointing a private attorney—as the Federal

19 Rules of Criminal Procedure command—who can then prosecute an appeal.

20 II. ARGUMENT

21

To begin, as this Court’s assessment reflects, the question of the Pardon’s validity

22 implicates considerations beyond those at issue in Grossman, for this case involves

23 private constitutional rights—a more significant issue than did Grossman. Under these

24 circumstances, this Court’s ruling should not be insulated from appellate review by the

25 Ninth Circuit, which could reasonably deem Grossman distinguishable, or ultimately by

26 the Supreme Court, which is free to reconsider Grossman itself.

27

Providing for appellate review in this case is all the more necessary because the

28 core power of the judiciary is at stake. The “fundamental purpose [of criminal contempt

Case 2:16-cr-01012-SRB Document 256 Filed 11/01/17 Page 4 of 8

1 proceedings] is to preserve respect for the judicial system itself.” Young v. U.S. ex rel.

2 Vuitton et Fils S.A., 481 U.S. 787, 800 (1987). For this reason, the Supreme Court has

3 instructed that the appellate courts play an important role in criminal contempt matters:

4 “The exercise of supervisory authority [by the appellate courts] is especially appropriate

5 in the determination of the procedures to be employed by courts to enforce their orders, a

6 subject that directly concerns the functioning of the Judiciary.” Id. at 809. This Court

7 should not limit the appellate courts’ opportunity to consider the important question raised

8 here concerning the judiciary’s authority to enforce constitutional rights.

9

Appointing a private attorney who can prosecute an appeal is not only important to

10 the Judicial Branch as a whole—it is also mandated by the Federal Rules of Criminal

11 Procedure. Rule 42(a)(2) directs that in a prosecution for criminal contempt, “[t]he court

12 must request that the contempt be prosecuted by an attorney for the government,” and “[i]f

13 the government declines the request, the court must appoint another attorney to prosecute

14 the contempt.” Fed. R. Crim. P. 42(a)(2) (emphasis added). Every court that has

15 considered the issue has held that Rule 42(a)(2)’s requirement that a private attorney be

16 appointed if the government declines to prosecute the contempt is “mandatory.” See

17 United States v. Struckman, 611 F.3d 560, 580 n.1 (9th Cir. 2010) (Benzon, J. concurring)

18 (“If criminal contempt is pursued, a prosecutor, either for the government or appointed

19 specially by the court, would be mandatory as to conduct occurring outside the court’s

20 presence.” (citing Rule 42(a)(2)) (emphasis added)); In re Troutt, 460 F.3d 887, 894 (7th

21 Cir. 2006) (“The requirement in Rule 42(a)(2) to appoint a prosecutor is spelled out in

22 mandatory language[.]”); e.g., United States v. Peoples, 698 F.3d 185, 193 (4th Cir. 2012)

23 (reversing contempt conviction because district court violated Rule 42(a)(2) in failing to

24 appoint a prosecutor for second contempt trial).

25

In this case, although the Government obtained a conviction, it then abandoned any

26 efforts to prosecute the contempt. The Government has argued in its briefing and in oral

27 argument that “this prosecution is over,” that “[t]here will be no sentencing,” “[t]here will

28 be no judgment,” and there will be no appeals. [Hrg. Tr. at 14:10-23; see also Doc. 225 at

-2-

Case 2:16-cr-01012-SRB Document 256 Filed 11/01/17 Page 5 of 8

1 3] Under these circumstances, where the government has abandoned the prosecution, Rule 2 42(a)(2) requires that the Court “appoint another attorney to prosecute the contempt.”1

3

A criminal case is not final until it is resolved by direct appeal. The Supreme Court

4 has explicitly held that criminal appeals are an “integral part of (our) system for finally

5 adjudicating [a criminal defendant’s] guilt or innocence.” Griffin v. Illinois, 351 U.S. 12,

6 18 (1956); see United States v. Oberlin, 718 F.2d 894, 896 (9th Cir. 1983). Nothing in

7 Rule 42 even suggests that a private attorney could only prosecute a contempt in district

8 court and not on appeal. E.g., In re Special Proceedings, 373 F.3d 37, 39-40 (1st Cir. 2004)

9 (Rule 42 prosecutor representing United States on appeal); United States v. Cutler, 58

10 F.3d 825, 828 (2d Cir. 1995) (same). Thus, the duty to prosecute set forth in Rule 42

11 includes the duty to prosecute an appeal where, as here, valid grounds for appeal exist.

12

Rule 42 reflects the judgment of the Supreme Court and Congress that, when the

13 Justice Department fails to pursue a contempt prosecution, the integrity of the Judicial

14 Branch requires appointment of another attorney to serve that function. Because this Court

15 believed itself bound by appellate precedent (and had before it amici briefs presenting

16 arguments that a private attorney might have made), it may have concluded it did not need

17 a private attorney for its own consideration of the issue. But, now that this Court has

18 dismissed the contempt charge, failure to appoint a private attorney could allow the

19 President and his Justice Department to effectively block appellate consideration of a

20 constitutional issue of critical importance to the Judicial Branch as a whole.

21 III. CONCLUSION

22

For the foregoing reasons, Amici respectfully request that the Court appoint a

23 private attorney to prosecute an appeal of this case.

24

25

26 1 Rule 42(a)(2) is not limited to situations where the government declines to
27 prosecute before charges are brought. See, e.g., In re Grogan, 972 F. Supp. 992, 1008 n.22 (E.D. Va. 1997) (denying government’s motion to dismiss criminal contempt charge and
28 appointing a private attorney to continue the prosecution).

-3-

Case 2:16-cr-01012-SRB Document 256 Filed 11/01/17 Page 6 of 8

1 Dated: October 16, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PERKINS COIE LLP
By: s/ Jean-Jacques Cabou Jean-Jacques Cabou Shane R. Swindle Katherine E. May 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788
Ian Bassin* Justin Florence* 2020 Pennsylvania Avenue NW #163 Washington, DC 20006
Noah Messing* MESSING & SPECTOR LLP 333 E. 43rd Street, Suite 1 New York, New York 10017
Phil Spector* MESSING & SPECTOR LLP 1200 Steuart Street # 2112 Baltimore, Maryland 21230 Attorneys for The Protect Democracy Project, Inc. RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER
By: s/ David M. Shapiro (with permission) Locke E. Bowman* (IL Bar No. 6184129) David M. Shapiro* (IL Bar No. 6287364) Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, Illinois 60611 Telephone: 312.503.0711 Email: locke.bowman@law.northwestern.edu david.shapiro@law.northwestern.edu
Attorneys for Roderick and Solange MacArthur Justice Center
-4-

Case 2:16-cr-01012-SRB Document 256 Filed 11/01/17 Page 7 of 8

1

FREE SPEECH FOR PEOPLE

2

3

By: s/ Ronald Fein (with permission)

Ronald Fein* (MA Bar No. 657930)

4

Shanna M. Cleveland* (MA Bar No. 647795)

1340 Centre St. #209

5

Newton, MA 02459

6

Telephone: 617.244.0234

rfein@freespeechforpeople.org

7

scleveland@freespeechforpeople.org

8 COALITION TO PRESERVE, PROTECT,

9

AND DEFEND

10

11

By: s/ Dennis Aftergut (with permission) Dennis Aftergut* (CA Bar No. 75656)

12

Louise H. Renne* (CA Bar No. 36508)

350 Sansome Street, Suite 00

13

San Francisco, CA 94104

14

dal.cppd@gmail.com

lrenne@publiclawgroup.com

15

Attorneys for Free Speech for People and

16

Coalition to Preserve, Protect and Defend

17 *Application for Admission Pro Hac Vice Forthcoming

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Case 2:16-cr-01012-SRB Document 256 Filed 11/01/17 Page 8 of 8

1

CERTIFICATE OF SERVICE

2

I hereby certify that on October 16, 2017, I electronically transmitted the

3 attached documents to the Clerk’s Office using the CM/ECF System for filing and

4 transmittal of a Notice of Electronic Filing to the CM/ECF registrants for this matter.

5 s/ Stephanie J. Lawson
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 United States v. Arpaio, 951 F.3d 1001 (2020) 20 Cal. Daily Op. Serv. 1790, 2020 Daily Journal D.A.R. 1617

951 F.3d 1001 United States Court of Appeals, Ninth Circuit.
UNITED STATES of America, Plaintiff-Appellee, v.
Joseph M. ARPAIO, Defendant-Appellant.
No. 17-10448 |
Argued and Submitted October 23, 2019 San Francisco, California |
Filed February 27, 2020
Synopsis Background: After district court entered order concluding that defendant was guilty of criminal contempt in bench trial, but before he was sentenced, he was granted pardon by President. The United States District Court for the District of Arizona, Susan R. Bolton, Senior District Judge, 2017 WL 4839072, denied defendant’s motion to vacate verdict, and defendant appealed.
Holdings: The Court of Appeals, Bybee, Circuit Judge, held that:
appeal of district court’s “Findings of Fact and Conclusions of Law” was moot, and
vacatur of guilty verdict was not warranted.
Affirmed.
Procedural Posture(s): Appellate Review.
Attorneys and Law Firms
*1002 John D. Wilenchik (argued) and Dennis I. Wilenchik, Wilenchik & Bartness P.C., Phoenix, Arizona; Mark Goldman and Jeff S. Surdakowski, Goldman & Zwillinger PLLC, Scottsdale, Arizona; Larry Klayman, Washington, D.C.; for Defendant-Appellant.
James I. Pearce (argued), Appellate Section, Criminal Division; Matthew S. Miner, Deputy Assistant Attorney
1

General; John P. Cronan, Acting Assistant Attorney General; John Dixon Keller, Deputy Chief; Victor R. Salgado and Simon Joseph Cataldo, Trial Attorneys, Public Integrity Section; United States Department of Justice, Washington, D.C.; for Plaintiff-Appellee.
Christopher G. Caldwell (argued), Boies Schiller Flexner LLP, Los Angeles, California, Special Prosecutor Plaintiff-Appellee.
Steven A. Hirsch, Ian Bassin, Justin Florence, Aditi Juneja, and Anne Tindall, The Protect Democracy Project Inc., Washington, D.C.; Jean-Jacques Cabou, Shane R. Swindle, and Katherine E. May, Perkins Coie LLP, Phoenix, Arizona; Locke E. Bowman and David M. Shapiro, Roderick and Solange Macarthur Justice Center, Chicago, Illinois; Ronald A. Fein and Shanna M. Cleveland, Free Speech for People, Newton, Massachusetts; Noah Messing, Messing & Spector LLP, New York, New York; Phil Spector, Messing & Spector LLP, Baltimore, Maryland; Dennis Aftergut and Louise H. Renne, Coalition to Preserve, Protect, and Defend, San Francisco, California; for Amici Curiae Laurence H. Tribe; Martin H. Redish; Lawrence Friedman; William D. Rich; Citizens for Responsibility and Ethics in Washington; Coalition to Preserve, Protect and Defend; Free Speech for People; MoveOn; The Protect Democracy Project, Inc.; Republicans for the Rule of Law; and The Roderick and Solange Macarthur Justice Center.
Spencer G. Scharff, Scharff PLC, Phoenix, Arizona; R. Bradley Miller, Guttman Bushner and Brooks PLLC, Washington, D.C.; for Amicus Curiae Certain Members of Congress.
Dennis P. Riordan and Donald M. Horgan, Riordan & Horgan, San Francisco, California; for Amici Curiae Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar.
Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding, D.C. No. 2:16-cr-01012-SRB-1
Before: Jay S. Bybee, N. Randy Smith, and Daniel P. Collins, Circuit Judges.

United States v. Arpaio, 951 F.3d 1001 (2020) 20 Cal. Daily Op. Serv. 1790, 2020 Daily Journal D.A.R. 1617
OPINION
BYBEE, Circuit Judge:
Defendant-Appellant Joseph Arpaio, the former Sheriff of Maricopa County, Arizona, was found guilty of criminal contempt in a bench trial for willfully violating a preliminary injunction prohibiting him from enforcing federal civil immigration law. After entry of the verdict, but before the court could sentence Arpaio, he was granted a pardon by the President. Arpaio asked the district court to vacate the verdict and dismiss the criminal case against him with prejudice. The district court granted the motion to dismiss the case with prejudice, but refused to vacate the verdict. Arpaio appeals that decision, arguing that vacatur was required under the Supreme Court’s decision in United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). Because we find that Munsingwear does not apply in this case, we affirm the judgment of the lower court.
*1003 I. FACTS AND PROCEDURAL HISTORY
Joseph Arpaio was the elected sheriff of Maricopa County, Arizona, from 1993 through 2016. In 2007, a class of Hispanic Maricopa County residents sued Arpaio in the U.S. District Court for the District of Arizona under 42 U.S.C. § 1983. They alleged “illegal, discriminatory and unauthorized enforcement of federal immigration laws against Hispanic persons in Maricopa County.” According to the plaintiffs, Arpaio and his officers, “acting under color of law and in concert with one another, engaged in profiling of” Hispanic motorists by detaining persons based solely on their ethnicity. In 2011, Judge Murray Snow preliminarily enjoined Arpaio and the Maricopa County Sheriff’s Office (MCSO) “from detaining any person based on knowledge, without more, that the person is unlawfully present within the United States.” Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 992–93 (D. Ariz. 2011), aff’d, 695 F.3d 990 (9th Cir. 2012). In 2013, Judge Snow issued a permanent injunction. That injunction barred the MCSO from “[d]etaining, holding, or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons were in the country without authorization.”
2

In 2016, following extensive hearings, Judge Snow concluded that Arpaio and the MCSO had “intentionally failed to implement the Court’s preliminary injunction.” Judge Snow held Arpaio in civil contempt, and Arpaio conceded his liability for civil contempt. In a separate order, Judge Snow found that Arpaio had “intentionally disobeyed” the injunction, and that he “did so based on the notoriety he received for, and the campaign donations he received because of, his immigration enforcement activity.” On that basis, Judge Snow referred the matter to another judge to adjudicate the criminal contempt charges against Arpaio.
The case was randomly assigned to Judge Susan Bolton, who presided over the prosecution of Arpaio for “[d]isobedience or resistance to [the court’s] lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401(3). Judge Bolton requested that the U.S. Department of Justice prosecute the case, which it agreed to do. See Fed. R. Crim. P. 42(a)(2). In July 2017, after a five-day bench trial, the district court issued “Findings of Fact and Conclusions of Law,” concluding that Arpaio was guilty of criminal contempt of court. United States v. Arpaio, No. CR-16-01012-001-PHX-SRB, 2017 WL 3268180, at *7 (D. Ariz. July 31, 2017). Judge Bolton scheduled sentencing for October 2017.
Arpaio was never sentenced. On August 25, 2017, before the district court could pronounce sentence, President Trump granted Arpaio a full and unconditional pardon “[f]or his conviction of Section 401(3) ... and for any other offenses under Chapter 21 of Title 18, United States Code that might arise, or be charged, in connection with Melendres v. Arpaio.”1 *1004 Relying on the pardon, Arpaio asked the district court to dismiss his criminal case with prejudice and to “vacate the verdict and all other orders.” The district court granted Arpaio’s motion to dismiss the case with prejudice, but denied vacatur of the verdict. United States v. Arpaio, No. CR-16-01012-001-PHX-SRB, 2017 WL 4839072, at *2 (D. Ariz. Oct. 19, 2017). The district court held that “[a] presidential pardon must be accepted to be effective.” Id. at *1. The court found that Arpaio “accepted the pardon before a judgment of conviction was entered,” and accordingly, “[t]he pardon undoubtedly spared [Arpaio] from any punishment that might otherwise have been imposed,” but did not “revise the historical facts of this case.” Id. at *2 (quotation marks omitted).2
Arpaio filed a timely appeal from the district court’s refusal to grant the vacatur. He urges two points. First,

United States v. Arpaio, 951 F.3d 1001 (2020) 20 Cal. Daily Op. Serv. 1790, 2020 Daily Journal D.A.R. 1617
Arpaio argues that because his pardon mooted any challenge to the court’s verdict, that verdict must be vacated, and it was an abuse of discretion for the district court to refuse to do so. At oral argument, however, Arpaio clarified that, if we agree that his challenges to the findings of guilt are moot because they will have no future preclusive effects, then he seeks no further relief beyond that determination. Second, Arpaio contends that, if the district court’s finding of guilt will have future effects, then his challenges to those findings are not moot and must be decided by this court on the merits. He raises six issues that he claims warrant reversal of the district court’s verdict of guilt.3
II. JURISDICTION AND STANDARD OF REVIEW
Ordinarily, we do not acquire jurisdiction over a verdict of guilt in a criminal case until the sentence has been issued and the judgment of conviction is final. See United States v. Vela, 624 F.3d 1148, 1151 (9th Cir. 2010); see also Smith, 623 F.2d at 630 (“The general rule is that it is the judgment, not the verdict, that is the ‘conviction.’ ”). We have no authority here to review the district court’s “Findings of Fact and Conclusions of Law” where the case was dismissed with prejudice and no sentence was ever imposed, because we do not have a final judgment of conviction before us and because that verdict can have no future preclusive effect. Arpaio’s claimed errors in the district court’s verdict are therefore moot, and we will not consider them further.
*1005 By contrast, Arpaio’s appeal from the denial of vacatur of the district court’s verdict is appealable as a final order over which we have jurisdiction under 28 U.S.C. § 1291. See United States v. Tapia-Marquez, 361 F.3d 535, 537 (9th Cir. 2004); see also Munsingwear, 340 U.S. at 40, 71 S.Ct. 104 (“Denial of a motion to vacate could bring the case here.”). The district court’s order dismissed the case with prejudice, even as it denied the full vacatur that Arpaio sought. The district court’s order concluded the litigation and made the order appealed a final order.
We review a district court’s grant or denial of equitable vacatur for abuse of discretion. See Tapia-Marquez, 361 F.3d at 537. “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the
3

law or on a clearly erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); see United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).
III. ANALYSIS
Arpaio’s threshold claim is that the district court abused its discretion by refusing to vacate the district court’s verdict under Munsingwear. Arpaio urges us to correct the district court’s legal error and vacate the verdict. See 28 U.S.C. § 2106. We disagree with Arpaio, but follow a slightly different path from the district court. We hold that, because the mootness issue here arises from the fact that the district court’s findings of guilt can be given no future preclusive effect, the Munsingwear rule does not apply, and Arpaio is not entitled to vacatur. We thus affirm the judgment of the district court.
In Munsingwear, the Supreme Court was asked to determine whether a judgment in a proceeding for injunctive relief that was later mooted while on appeal could have preclusive effect on a claim for damages. See 340 U.S. at 37–38, 71 S.Ct. 104. In grappling with that question, the Court observed:
The established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.
Id. at 39, 71 S.Ct. 104. Though this statement was not Munsingwear’s holding4—for the petitioner in Munsingwear was not even asking for vacatur of the mooted decision—it has since become known as “the Munsingwear rule,” which provides for vacatur in cases mooted while on appeal. See, e.g., ACLU of Nev. v. Cortez Masto, 670 F.3d 1046, 1065 (9th Cir. 2012) (discussing “the Munsingwear rule”); see also Nat’l

United States v. Arpaio, 951 F.3d 1001 (2020) 20 Cal. Daily Op. Serv. 1790, 2020 Daily Journal D.A.R. 1617
Union Fire Ins. Co. v. Seafirst Corp., 891 F.2d 762, 765–66 (9th Cir. 1989) (same).
The purpose underlying this rule “is to prevent an unreviewable decision from spawning any legal consequences, so that no party is harmed by what we have called a ‘preliminary’ adjudication.” Camreta v. Greene, 563 U.S. 692, 713, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (internal quotation marks omitted) (quoting Munsingwear, 340 U.S. at 40–41, 71 S.Ct. 104); see also Munsingwear, 340 U.S. at 40, 71 S.Ct. 104 (explaining that vacatur “clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance”). In this case, vacatur would not further the purposes of *1006 Munsingwear because the district court’s verdict finding Arpaio guilty of criminal contempt has no legal consequences.
The “general rule” for issue preclusion provides that a “ ‘determination [in a prior case] is conclusive in a subsequent action between the parties’ ” only “ ‘[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment.’ ” B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 148, 135 S.Ct. 1293, 191 L.Ed.2d 222 (2015) (emphasis added) (quoting Restatement (Second) of Judgments § 27, at 250 (Am. Law Inst. 1980)).5 The verdict Arpaio seeks to vacate satisfies neither of these conditions. First, although the verdict would have been essential to any final judgment of conviction, there was no final judgment of conviction here, because Arpaio was never sentenced. Second, for the final judgment that was entered in this case—a dismissal of the criminal contempt charge—the verdict was not only not essential to the judgment, but was inconsistent with it. Because Arpaio cannot be “harmed by ... a ‘preliminary’ adjudication,” Camreta, 563 U.S. at 713, 131 S.Ct. 2020, we decline to apply the Munsingwear rule to this case.
We will explain both points in turn.
A
Though colloquially we refer to the district court’s finding of guilt as a “conviction,” in reality, Arpaio never
4

suffered a final judgment of conviction for criminal contempt. “Final judgment in a criminal case means sentence. The sentence is the judgment.” Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937); see Corey v. United States, 375 U.S. 169, 172, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963) (“An appeal may not be taken until after the pronouncement of sentence.”). Here, the issuing of a presidential pardon, and Arpaio’s acceptance of the pardon, preempted his sentencing. Thus, there is no final judgment of conviction in this case; instead, there was a final judgment of dismissal with prejudice. This lack of a final judgment of conviction precludes the attachment of “legal consequences,” Camreta, 563 U.S. at 713, 131 S.Ct. 2020, such as a sentencing enhancement in a subsequent criminal case or claim or issue preclusion in a civil case.6 For this reason, vacating the verdict here would not serve the purposes of Munsingwear.
The lack of a judgment of conviction and the dismissal of the charges with prejudice means that Arpaio is not subject to an enhanced sentence in any subsequent case based on the district court’s finding that Arpaio committed criminal contempt. Although the U.S. Sentencing Guidelines contemplate an enhanced sentence after a guilty verdict and pending sentencing, U.S.S.G. § 4A1.2(a)(1), no such enhancement can be imposed where no sentence was ultimately imposed and the case was dismissed.7 The rule is similar in Arpaio’s *1007 home state of Arizona, which only prescribes sentence enhancements for final convictions, see Ariz. Rev. Stat. § 13-707 (enhancing sentences for prior “conviction[s]”); id. § 4-248(B) (defining “conviction” as “a final conviction”), a term which the Arizona courts have defined to mean “a judgment of conviction from which [a defendant] has exhausted his right to appeal,” Campbell v. Superior Court, 105 Ariz. 252, 462 P.2d 801, 804 (1969).
For similar reasons, Arpaio will not be subject to issue preclusion or claim preclusion in any subsequent civil litigation. As we noted above, the “general rule” for issue preclusion provides that a “ ‘determination [in a prior case] is conclusive in a subsequent action between the parties’ ” only “ ‘[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment.’ ” B&B Hardware, Inc., 575 U.S. at 148, 135 S.Ct. 1293 (emphasis added) (quoting Restatement (Second) of Judgments § 27, at 250 (Am. Law Inst. 1980)). In civil cases, “the availability of appellate review is a key factor” in determining the preclusive effect of a judgment. Bravo-Fernandez v. United States, ––– U.S. ––––, 137 S. Ct. 352, 358, 196 L.Ed.2d 242 (2016). Similarly, claim

United States v. Arpaio, 951 F.3d 1001 (2020)
20 Cal. Daily Op. Serv. 1790, 2020 Daily Journal D.A.R. 1617
preclusion requires proof of “(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Comm’n, 322 F.3d 1064, 1077 (9th Cir. 2003) (emphasis added) (quoting Stratosphere Litig. L.L.C. v. Grand Casinos, Inc., 298 F.3d 1137, 1143 n.3 (9th Cir. 2002)). The Restatement (Second) of Judgments has addressed directly the “requirement of finality.” In general, for claim preclusion, “a judgment will ordinarily be considered final in respect to a claim ... if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court, short of any steps by way of execution or enforcement ....” Restatement (Second) of Judgments § 13 cmt. b (Am. Law Inst. 1982); see also id. cmt. g (noting that we should not read “finality less strictly when the question is one of issue preclusion”). The “factors supporting the conclusion that the decision is final for the purpose of preclusion” are “that the parties were fully heard, that the court supported its decision with a reasoned opinion, [and] that the decision was subject to appeal or was in fact reviewed on appeal.” Id. cmt. g (emphasis added).
Where the district court dismissed with prejudice Arpaio’s criminal case before sentencing, there was no final judgment of conviction, and the verdict was not subject to appeal. There is no preclusion and no reason for us to apply Munsingwear to this case.

The final judgment entered in this case was a dismissal with prejudice, and the district court’s findings of fact and conclusions of law played no role in that dismissal. In fact, “[f]ar from being necessary to the judgment, [the findings underlying the guilty verdict] cut against it—making them quintessentially the kinds of rulings not eligible for issue-preclusion treatment.” Bobby v. Bies, 556 U.S. 825, 835, 129 S.Ct. 2145, 173 L.Ed.2d 1173 (2009) (emphasis added) (citation and internal quotation marks omitted); see also id. (“A determination ranks as necessary or essential only when the final outcome hinges on it.”) (citing *1008 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4421 (2d ed. 2002)). Again, the rationale for Munsingwear does not apply. See Camreta, 563 U.S. at 713, 131 S.Ct. 2020.
IV. CONCLUSION
The district court’s judgment dismissing Arpaio’s criminal proceeding with prejudice and denying vacatur of the finding of guilt is affirmed. Because Arpaio’s challenges to the district court’s finding of guilt are moot, we do not address them.
AFFIRMED.

All Citations

B

951 F.3d 1001, 20 Cal. Daily Op. Serv. 1790, 2020 Daily

Journal D.A.R. 1617

The preclusion rules will not apply in any future litigation for a second reason: The verdict was not a determination essential to the actual, final judgment entered in this case.
Footnotes

1

Although President Trump pardoned Arpaio for his “conviction” for criminal contempt, Arpaio was never technically

“convicted” of anything. Colloquially, we use the term “convicted” to describe when an individual has been found

guilty of a crime. See, e.g., Richard Perez-Pena, Former Arizona Sheriff Joe Arpaio is Convicted of Criminal Contempt,

N.Y. Times (July 31, 2017); Colin Dwyer, Ex-Sheriff Joe Arpaio Convicted of Criminal Contempt, NPR (July 31, 2017).

Legally, though, using the term in this way is imprecise because there is a technical difference between a

“conviction” and a “judgment of conviction.” Arpaio suffered a “conviction,” but not a “judgment of conviction,”

which does not occur until sentence is imposed. See United States v. Smith, 623 F.2d 627, 630 (9th Cir. 1980).

Admittedly, we have not always used these terms with precision. But in this case, precision is important.

5

United States v. Arpaio, 951 F.3d 1001 (2020) 20 Cal. Daily Op. Serv. 1790, 2020 Daily Journal D.A.R. 1617

Accordingly, we will not refer to the order for which Arpaio seeks vacatur as a “conviction,” but will instead refer to it as the “verdict” or “finding of guilt.”

2

Following the issuance of the pardon, the Department of Justice took the position that the district court should

vacate the court’s verdict and declined to defend the district court’s order. We appointed Christopher G. Caldwell as

a special prosecutor to defend the district court’s order. See United States v. Arpaio, 887 F.3d 979 (9th Cir. 2018),

reh’g en banc denied by 906 F.3d 800 (9th Cir. 2018); see also Fed. R. Crim. P. 42(a)(2) (“If the government declines

the request, the court must appoint another attorney to prosecute the contempt.”)

The court thanks Mr. Caldwell for accepting the appointment and for faithfully discharging his responsibilities as

special prosecutor.

3

Arpaio argues that (1) his prosecution for criminal contempt had to be prosecuted under 18 U.S.C. § 402, which has

a one-year statute of limitations, which had run and, alternatively, entitled him to a jury trial; (2) he was not present

for the verdict, in violation of the Sixth Amendment; (3) the finding of guilt for violating the preliminary injunction

was unsupported by the evidence; (4) the preliminary injunction was not “clear and definite,” in violation of the Due

Process Clause of the Fifth Amendment; (5) he relied on the good faith advice of counsel; and (6) he proffered a

meritorious public authority defense.

4

See U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (discussing

Munsingwear and describing “the portion of ... Munsingwear describing the ‘established practice’ for vacatur” as

“dictum”).

5

The preclusive effect of a federal court judgment is governed by federal law. See Semtek Int’l Inc. v. Lockheed Martin

Corp., 531 U.S. 497, 507–08, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001).

6

We note that even if it were disposed to, the United States is barred by the Double Jeopardy Clause from bringing a

second criminal action against Arpaio, as jeopardy in Arpaio’s trial attached when Judge Bolton began hearing

evidence, see Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), and “[t]here can be

little doubt that a dismissal with prejudice bars any further action between the parties on the issues subtended by

the case,” Classic Auto Refinishing, Inc. v. Marino (In re Marino), 181 F.3d 1142, 1144 (9th Cir. 1999); see also Currier

v. Virginia, ––– U.S. ––––, 138 S. Ct. 2144, 2152–53, 201 L.Ed.2d 650 (2018); United States v. Castiglione, 876 F.2d

73, 75–76 & n.1 (9th Cir. 1989).

7

Section 4A1.2(a)(3) counts a conviction where “the imposition or execution of sentence was totally suspended or

stayed.” This provision does not apply to Arpaio, because his sentence was neither stayed nor suspended.

6